Damage to Air Conditioner by gardeners employed by strata

I'm with you on this.  The gardener was acting on behalf of the Owners Corp so they should pay and it should come out of their insurance.  Seems pretty clear cut to me.

Absolutely!
The EC or agent should quickly pursue the gardener to claim on his insurance as the gardener should have insurance to cover the damage BUT if things get bogged down and you need to use the air con then press the OC to fix the problem via their insurance or funds as they have the, immediate, s62 duty regardless of who did the damage.

The following is from Clover Moores' 2009 Strata discussion paper.
The full paper can be found HERE

Issue 4.3 Damage to Common Property
Owners Corporations pay for damage to common property, regardless who caused it.

If the OC need to fix the problem via their own insurance or funds then it does not dissolve the gardener of responsibility for his damage; it just mean you get a more immediate repair while the gardener fights what should be a losing battle.

If your agent is suggesting you (personally) chase the gardener for reimbursement, are they suggesting you get it fixed, using your personal (not OC) funds, and then have the gardener reimburse you?

You should look into getting a new agent if that is the case. They should know it is not for the owner to chase up this type of matter.

If the gardener will not take immediate action (make a claim on his policy) then claim on the OCs policy and let the OCs insurer chase the gardener.

This matter presents as one that deals with damage to common property and it is an administration matter i.e. agent or EC. Have a quick look at the agency agreement and see if insurance claims is a part of the delegation of duties to the agent and make a claim on the OCs policy if the gardener wont play nice.

I’m going to leave this to any lawyers who might be reading this but I do note that in the section of the Strata Act regarding the OC’s right to enter a lot in an emergency, they are responsible for any damage caused by their contractors in effecting emergency repairs.

I think your strata manager is offering you an opinion backed up by … what? Does anyone have a definitive answer?

Sorry all, but as a non-lawyer and mere Secretary of a self-managed Plan I have a different perspective on this.

It seems to me that this is a great example of an instance where a Proprietor (either past or current) has, by the installation of an air-conditioner without the prior consent of the Owners Corporation (O/C), effectively added to the Common Property.

As there is reportedly no Special By-Law covering the works either specifically or generically, the damaged air-conditioner forms part of the Common Property, and responsibility for its “maintenance and repair” falls upon the O/C under S62 of the SCMA.

“The Dawdells” shouldn't be dealing with the O/C's Contractor, but should rather be insisting that the O/C either follows-up with their Contractor with regard to the repairs being made under a Claim on that Contractor's Liability Insurance, or if delays persist, by insisting that the O/C itself commissions the repairs and at its discretion seeks a reimbursement from that Contractor.

Best of luck with that. I think rather than asking them to forward it to the gardeners, I'd have been just asking them to pay it.  If they want to take it out of their insurance or pursue the gardeners, that's their business and not your problem.

If you look at Whale's response, above, you'll see that the SM is labouring under a common misapprehension.  Because the Air-Con was installed by a previous owner without permission doesn't mean that you have to apply to have it  on common property – it means that it must now be considered common property and it's up to the OC to maintain it (regardless of who damaged it).  The OC at the time it was installed had the opportunity to formalise the arrangement or have it removed.  That they didn't do so isn't your fault and they have inherited the issue from the previous OCs.

The other misconception troubling your SM is that the OC doesn't have responsibilty for the actions of their contractors.  Why then would they have OH&S insurance, for instance?

All that said, you are now facing a $70 charge if you want to take this to Fair Trading for mediation (an obligatory first step towards a claim at the CTTT.  And you might have a smartypants in your EC say, well, if this is common property, let's remove it.

Frankly, I'd be using this as a opportunity to formalise the air-con issue. They can pay the repair bill and for a special resolution by-law to be drawn up whereby you agree to take over the maintenance of the air-con unit  in the future. But even if you were responsible for the unit now, they would still be liable for the repairs.

My suggestion – see if you can arrange a free mediation with someone from the Institute of Strata Titles Management who is more across the strata legislation than your guy is.  I don't even know if ISTM do mediations but they should.  

While you're waiting for a definitive legal ruling, have a look HERE.