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Hi, I am new to this site, please bear with me. Our dishwasher had a leak from the hose which traveled to next doors hallway. They called the strata plumber to investigate leak, at 10pm on a public holiday. Plumber requested access to our unit, believing leak may be from kitchen. He identified leak may be from dishwasher and advised not to use and to get a repair by appliance technician.
Almost two weeks later, we have received the invoice from the strata for this call out. My question is, are we responsible for this invoice? We did not call the plumber and no repairs were carried out. We only provided assistance by allowing access to our unit at 11pm. Your help in this matter would be greatly appreciated.
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That’s a tricky one. The leak was coming from your unit, and someone was called out to investigate it. The fact that they didn’t do any repairs is neither here nor there, they still did something.
On balance I would say that you may be responsible, given that the leak was coming from something that is not common property. However others are free to disagree with me.
It is a tricky situation.
From the OC’s or other owner’s point of view it can appear that the water leak originated from somewhere on common property. So the OC or other owner called a plumber to investigate. But the leak was eventually traced to another owner’s dishwasher.
There’s no doubt that the owner of the dishwasher is responsible for the leak. And that owner would also be liable for any damage the leak caused to another’s property (common property or another owner’s property). That damage would include a plumber’s costs for investigating the leak. So the OC is correct to send you the bill. You can refuse to pay it or try to claim it on your contents insurance under its liability cover. If you refuse to pay, the OC can try to recover their costs as a common law claim against someone who has damaged another’s property.
I’d be interested to know other opinions.
@nathanthiessen said:
Almost two weeks later, we have received the invoice from the strata for this call out. My question is, are we responsible for this invoice? We did not call the plumber and no repairs were carried out. We only provided assistance by allowing access to our unit at 11pm. Your help in this matter would be greatly appreciated.Most likely not. See Lumbers v W Cook Builders Pty Ltd (In Liq) [2008] HCA 27 at [80] where the majority of the High Court in that case quoted the following passage from an English case:
“The general principle is, beyond all question, that work and labour done or money expended by one man to preserve or benefit the property of another do not according to English law create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will.”
The story, however, is different if the owners corporation can establish that there was a legally binding contract between you and the owners corporation that required you to reimburse the owners corporation’s expenditure for the said call out. But it doesn’t seem you have to worry about that.
I can’t see this matter has anything to do with contract law.
Damage was being caused to private and/or common property by water. The owner of the private property or the Owners Corporation took steps to investigate the cause of the damage. It turned out that the damage was being caused by an other owner’s private property.
Common Law would suggest that those that suffered the damage have a right to claim costs against those that caused the damage?
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).
@Austman said:
I can’t see this matter has anything to do with contract law.Damage was being caused to private and/or common property by water. The owner of the private property or the Owners Corporation took steps to investigate the cause of the damage. It turned out that the damage was being caused by an other owner’s private property.
Common Law would suggest that those that suffered the damage have a right to claim costs against those that caused the damage?
I am not suggesting this has anything to do with contract law. I make that clear in my concluding paragraph in my post. I said to the op: “But it doesn’t seem you have to worry about that.”
The High Court case I referred to in my post considers legal principles applicable to the law of restitution. In absence of any legally binding contract referred to in my post (which appears to be the case for the op), then one would generally only be able to recover money spent on the said repairs under the law of restitution. However, as the High Court made clear in that case, a person who spends money carrying out work to someone else’s property cannot be reimbursed for the expenditure they incurred carrying out that work by the owner of that property, unless, at the bare minimum, the person from whom the reimbursement is sought made a request that work to be carried out. It seems that, in the op’s case, he/she did not make any such request, and hence, is not liable to reimburse the owners corporation of the expenditure it incurred for repairing the op’s lot property.
Have a read of the case.
@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.
mini – the High Court case you cite is a contract case which considers the principle of quantum meruit.
The Swan case dealt with an owner making unauthorised repairs to the common property, where it was held that the expenses were not recoverable as a loss attributable to a breach of duty, i.e. the OC did not breach its duty, and it is up to the OC to determine how the common property is to be repaired. The reverse does not apply – the OC is not telling the owner how to repair his property, they were simply investigating the source of a leak.
Neither of those cases is relevant to this issue. It is very dangerous to take parts of decisions from different fact scenarios considering different legal principles, and applying them to something like this.
The issue here is quite simple – if you have something in your lot that is faulty that affects the common property, are you liable for the expenses in both investigating and repairing the fault? I would say yes – if you are liable for the repair, you are liable for investigating the source of the fault.
@mini said:
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.
But s.49 doesn’t need any notice. That’s recovering the costs that the OC spent. The owner might still need to be given notice make their own repairs at thier cost, which seems the case here. S.49 states that the OC can recover the costs for repairs, maintenance or other works that it undertook for the benefit of lot owners.
I know the above is Victorian OC law but in general, if someone damages your property, do you need their permission before you arrange to repair it? You might not even know who damaged it until aftef calling in the repair man.
I may be out of line here, but what the hey….
Pleeeeeease……the management of Strata Schemes is difficult enough to handle in a fair, sensible, and legally compliant way without this incessant researching and quoting of legal precedents in response to straight-forward questions.
OK this one’s a bit tricky, but thankfully it doesn’t involve contract law or the High Court but rather the common sense approach that was alluded to by Scotty (post #2) and reinforced by Austman (post #3); the resident who contacted the plumber could not reasonably have been expected to know the source of the water leakage, so logically they contacted the O/C’s plumber who located that source within Nathan’s Unit, so he should pay the plumber’s invoice.
@scotlandx said:
mini – the High Court case you cite is a contract case which considers the principle of quantum meruit.Yes it is. It is also a case about restitution. Indeed, the headnote reads:
“Restitution – Unjust enrichment – Appellants accepted benefit of construction work performed by and at the expense of respondent – Claim that it would be unconscionable for appellants to retain benefit – Appellants made no direct request of respondent – Whether restitutionary claim available.”
Quantum meruit and restitution are similar, however, they are not the same. Indeed, you are quite correct that quantum meruit is applicable to contract law. Sometimes it is considered as the damages arising from an “implied contract”.
With restitution, on the other hand, there is no contract (I believe it is often considered that there is a “quasi contract”, but that isn’t an actual contract). It is an equity and/or common law principle that allows justice to be done where was no clear promise ever made (or ever intended). Thus, it appears that the law of restitution is most applicable to the op’s case, those legal principles having been considered by the High Court in the case I cited.
The Swan case dealt with an owner making unauthorised repairs to the common property, where it was held that the expenses were not recoverable as a loss attributable to a breach of duty, i.e. the OC did not breach its duty, and it is up to the OC to determine how the common property is to be repaired. The reverse does not apply – the OC is not telling the owner how to repair his property, they were simply investigating the source of a leak.
With respect, I wouldn’t see why the reverse wouldn’t apply. It is up to the owner of the property (which, in the case of common property, is the owners corporation) to decide how the property is to be repaired. In the case of a lot, it is up to the lot owner to decide how their property should be repaired.
If the owners corporation went ahead and repaired (or made investigations to repair) lot property, for alleged breach of statutory duty, without authorisation from the lot owner then the owners corporation cannot claim, as damages, from the lot owner the costs of the repair.
Neither of those cases is relevant to this issue. It is very dangerous to take parts of decisions from different fact scenarios considering different legal principles, and applying them to something like this.
The issue here is quite simple – if you have something in your lot that is faulty that affects the common property, are you liable for the expenses in both investigating and repairing the fault? I would say yes – if you are liable for the repair, you are liable for investigating the source of the fault.
Yes, usually the owner of a property is responsible for repairing their property. However, that doesn’t give another party the right to go ahead, without the owner’s consent, and spend money to repair that owner’s property and then seek reimbursement (or sue for damages) of the cost of the repairs. Swan’s case was saying that the law doesn’t look favourably on such persons seeking reimbursement in such cases.
@Austman said:
But s.49 doesn’t need any notice. That’s recovering the costs that the OC spent. The owner might still need to be given notice make their own repairs at thier cost, which seems the case here. S.49 states that the OC can recover the costs for repairs, maintenance or other works that it undertook for the benefit of lot owners.Yes, but seems equally arguable in this case that the owner who benefitted from the alleged repair was the other lot owner who complained that water was penetrating into his/her lot.
I know the above is Victorian OC law but in general, if someone damages your property, do you need their permission before you arrange to repair it? You might not even know who damaged it until aftef calling in the repair man.
Generally yes. It is preferable that the owner of the property arranges repairs to their own property on terms suitable to themselves. See Swan’s case that I cited before.
I think this one has run it’s course. But let’s make something clear, whatever other cases in other places may say, the Owners Corp has a duty to maintain and repair common property and the right to enter private property to investigate whether repairs are required. That can be done with the permission of the owner or, failing that, by seeking an order from NCAT
In relation to this particular issue, I believe if the Owners Corp investigates a leak in your property that’s affecting common property and other lots, and discovers it’s caused by your property, then you have to pay because your property has caused the problem. If they investigate a leak that turns out not to be coming from your property, then the OC has to pay.
And on that note, this discussion is closed.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
I think the explanation is rational. Whoever causes the problem should indeed be the party to pay for the damages, even if they occur outside of their own premises. I think it is just fair. The same rule applies to our self-storage in Blue Mountains. If there are any damages to our customers’ belongings inside their units, we investigate the root of the problem. If it is a leakage from outside for example, we will compensate them back the full costs. However, if the customers’ belongings damage our property, they will be liable in that case.
@ericbosloor said:
I think it is just fair.Unfortunately the law is not always “fair”. See, for example, Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305.
I don’t mean any disrespect to those in this thread in saying this, but it is kind of surprising that everyone in this thread disagrees with my view, yet they cannot cite a single case to prove their assertions correct …
I’m not saying my views are necessarily correct, but at least I have provided cases and detailed explanations of those cases to substaniate my views. Others, on the other hand, are just claiming that I am simply wrong …
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