@Austman said:
Just to add, I found this on The Law Handbook Online.It relates to the situation in Victoria. It seems the OC can recover debts under s.49.
https://www.lawhandbook.org.au/handbook/ch10s05s05.php#Ch1302Se257876
Water leaks
Under section 16 of the Water Act 1989 (Vic), a lot owner is responsible for the repair and maintenance of their unit to prevent any escape of water from the unit into any other unit within the plan of subdivision.
Although the owners corporation is not a liable party and need not pursue a response, it must do everything in its power to fulfil its obligations responsibly to ensure that it cannot be implicated in the cause of the leak. This may involve undertaking investigations, repairs and maintenance including new guttering, flashings and sealants and the clearance of storm water drains.
In addition, under section 48 of the OC Act, an owners corporation may choose to be involved and may serve notice on the lot owner requiring the lot owner to carry out the necessary repairs, maintenance or other works and may recover as a debt from the lot owner any costs expended by the owners corporation for the rectification (s 49).
With respect to s 16 of the Water Act 1989 (Vic), subsection 1(b) provides that one is only liable for damages if the “flow is not reasonable”. Thus, a lot owner does not seem to have an absolute duty under that section.
Secondly, in the event that the op was to be liable under that section, it is not clear whether that would extend to the call out fee incurred by the owners corporation, given that the op did not give permission to the owners corporation’s contractor to perform the work. My views are based on what was said in The Owners – Strata Plan 32735 v Heather Lesley-SWAN [2012] NSWSC 383 at [197]. That case was in the context of a lot owner performing repairs to the common property (which the owners corporation is owner of) and then seeking to sue the owners corporation for statutory damages for the cost of the repairs. The court held at that paragraph:
“The basis for the principle against recovery in the latter situation is clear. The relevant case law authorities establish that the law does not look with favour upon an owner of one property of performing work on his neighbours property, it being recognised that such conduct carries with it the propensity for disputation, “turmoil” or “disorder”. The statutory provisions that establish a strata scheme, in my opinion, are directed towards maintaining an order amongst strata lot owners and with the owners corporation. They neither authorise nor permit a lot owner to determine the nature and extent of construction to be undertaken on common property. Nor do they permit an individual owner to engage a contractor to perform work on common property without the consent or approval of the owners corporation. Accordingly, the expenditure incurred by the respondent cannot be considered as “damage” inflicted upon or occasioned to the respondent. Nor did the evidence before the Local Court establish a causal nexus between the breach under s 62 of the Act and the expenditure claimed by the respondent.”
It seems to me that there is no reason why the same could not apply to the op’s case, of course with the roles as lot owner and owners corporation reversed.
With respect s 48 of the Owners Corporation Act 2006 (Vic), subsection 2 requires that the lot owner be served with a notice. A lot owner is only liable for damages under that section if the notice is not complied with in 28 days. That does not appear to be for the op’s case.
In any case, the above is only true is the op is in Victoria since the legislation you have quoted is Victorian legislation. It may be that he is in another state.