Recent VCAT Stuff
OBSERVATIONS by The OCguide
This matter should be treated as an event with its own unique issues which should be apparent in the below circumstances and reasoning. To apply this to every circumstance would therefore be unwise. You can also see the issues here which occur with Short Term letting in apartment buildings, not in every case but as consideration.
20 November 2013 VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNALCIVIL DIVISION
OWNERS CORPORATIONS LIST
VCAT REFERENCE NO. OC1493/2013
Whether lot owner liable for false alarm call out fee; meaning of rules.
APPLICANT: Seung Nam Lee
RESPONDENT: Owners Corporation No. 501391P
WHERE HELD: Melbourne
BEFORE: Member L. Rowland
HEARING TYPE: Hearing
DATE OF HEARING: 29 October 2013
DATE OF ORDER: 20 November 2013
CITATION: Lee v Owners Corporation No. 501391P (Owners Corporations) [2013] VCAT 1942
ORDERS
1. The Tribunal declares that the applicant is not liable to pay the false alarm
call out fee.
2. The Respondent Owners Corporation is directed to remove the false alarm
call out fee together with any associated costs, interest and charges from
the applicant’s account.
3. There is no order as to costs.
MEMBER L. ROWLAND
APPEARANCES:
For the Applicant: Ms S.N. Lee and Ms E. Lee (daughter) together with Ms A. Lee (interpreter until 11:00 a.m.)
For the Respondent: Mr Bacon, solicitor VCAT Reference No. OC1493/2013 Page 2 of 7
REASONS
1. This proceeding concerns the vexed question of who is responsible for payment of a Metropolitan Fire Brigade false alarm call out fee. A visitor to a rented apartment negligently caused a false fire alarm. The owners corporation charged the lot owner with the associated costs.
2. The lot owner Mrs Lee, the applicant in these proceedings seeks a declaration that a false fire alarm call out fee of $6,071 plus a cleaning charge of $660 are not payable by her and that the owners corporation remove the charges and interest from her account.
3. The applicant is the owner of apartment S1209 in the south tower of the Watergate Apartments located in the Docklands district.
4. The applicant has owned the apartment since approximately 2008. Sometime prior to 12 February 2011, the date of the false alarm, the applicant rented her apartment through Gibson Land Real Estate to Yezz Pty Ltd. Yezz Pty Ltd in conjunction with Gibson Land Real Estate operated a short term serviced apartment business known as Grand Harbour Apartments from the Watergate Apartment Complex. According to Mr Wright, the assistant building manager, Grand Harbour Apartments leased approximately 30 apartments in the Watergate Apartment Complex including the applicant’s apartment, which were in turn let out on a short term basis. The applicant received a fixed monthly rent for the apartment, irrespective of the occupancy rate.
5. Just before 8.00 pm on 12 February 2011 Mr Myles McColl entered the car park of the Watergate Apartments in a Nissan Patrol vehicle registered V1585. The Nissan Patrol had a large luggage rack installed on the roof of the vehicle. The vehicle did not clear the height barrier and as it made its way into the car park, it hit an overhead sprinkler activating the fire alarm. At least three fire trucks attended. The owners corporation was charged $6,071 for the false alarm call out. In turn, the owners corporation charged the applicant. The damaged sprinkler resulted in a huge amount of water entering the car park and a cleaning charge of $660 was also added to the applicant’s account.
6. The basis for the owners corporation charging the applicant for the false alarm call out is that Mr McColl was either an occupier or invitee of the occupier of Apartment S1209 and the owners corporation claims that pursuant to either the Owners Corporation Act 2006 or the Additional Rules of the Owners Corporation, the applicant is liable to pay the false alarm call out charge.
7. The applicant denies that she is liable for the charges on the grounds that Mr McColl was not staying at her apartment and that she is not responsible for the call out fee. VCAT Reference No. OC1493/2013 Page 3 of 7
Was Mr McColl an Occupier of Room S1209?
8. The evidence connecting Mr McColl to Room S1209 is not clear.
9. On the night of the incident, apartment S1209 was, according to the records of Gibson Land Real Estate, let to Katja Bosley. The agency has no record of Mr McColl or his the Nissan Patrol vehicle.
10. The swipe card history for apartment S1209 does not connect Mr McColl to the card. There is no evidence of Mr McColl using the swipe card for apartment S1209.
11. It is not clear whether Mr McColl entered the car park with a swipe card. If he did, he did not use the swipe card for apartment S1209. The Owners Corporation asserted that Mr McColl entered the car park without a swipe card.
12. CCTV footage shows Mr McColl in the company of two women on Level 12 at approximately 8.08pm. Neither of the two women has been identified as Katja Bosley.
13. The CCTV footage showing the two women and Mr McColl at level 12 at 8.08 pm is not consistent with any of them using the swipe card associated with apartment S1209. The building supervisor, Mr Delves and Mr Wright said that this could be attributed to the CCTV computer and the swipe card
computers being out of synchronization by up to a minute and a half.
14. According to Mr Wright, apartment S1209 is the only apartment let as a Grand Harbour apartment on level 12.
15. Following the false alarm call out Mr Wright found Mr McColl at his Nissan Patrol Vehicle. Mr McColl admitted to Mr Wright that he was responsible for hitting the sprinkler and setting off the fire alarm. Mr Wright said that Mr McColl was at the time in the company of two women and he observed Mr McColl with a Grand Harbour Apartment key tag and also observed the room key for apartment S1209. Being satisfied that Mr McColl was entitled to stay at the complex, Mr Wright assisted Mr McColl to move his vehicle to the loading bay.
16. Further CCTV footage which would have shown Mr McColl’s movements throughout the building was not produced. Mr Wright said that CCTV footage would have been taped over within 6 weeks of the incident. He collected what he considered to be the relevant footage at the time.
17. The swipe card history for apartment S1209 shows that from 8.37pm until 11.41pm there was a lot of movement by the holder of the card throughout the building. The card was used or attempted to be used on 24 occasions indicating that there was a lot of coming and going out of apartment S1209
on that evening.
18. The applicant, ably assisted by her daughter, Ms E. Lee, noted many discrepancies in the owner corporation’s evidence connecting Mr McColl to her mother’s apartment. Ms Lee said her mother was not satisfied on the VCAT Reference No. OC1493/2013 Page 4 of 7
CCTV footage, swipe card history and evidence presented by the owners corporation that the Mr McColl was staying at her Apartment. Ms Lee pointed out that there would have been more CCTV footage which could have shed further light on the McColl’s movements, and established whether or not he was actually staying at the apartment. Understandably, the applicant wished to be reasonably certain that Mr McColl was in fact staying at her apartment.
19. Neither Mr McColl nor Ms Bosley has been pursued for payment of the false alarm call out fee.
Findings on the evidence
20. The evidence establishes the following on a balance of probabilities:
(a) The applicant is the owner of apartment S1209.
(b) Yezz Pty Ltd, a company connected with Gibson Land Real Estate, is the tenant of apartment S1209.
(c) On the night of 12 February 2011, Ms Bosley was the occupier of the apartment. Ms Bosley, hiring the apartment for one night, had a licence from the tenant Yezz Pty Ltd or Gibson Land Real Estate to occupy the apartment.
(d) Ms Bosley was not a tenant or a sub tenant.
(e) It is by no means certain or even probable that Mr McColl stayed over night in apartment S1209. However, on the evidence of Mr Wright that there are no other Grand Harbour Apartments on the 12th floor and that Mr McColl was holding a Grand Harbour key tag together with the CCTV footage placing him on the 12 floor at 8.08 pm, it is probable that Mr McColl was visiting a Grand Harbour apartment. As Ms Bosley was the only occupier of a Grand Harbour apartment on the 12 Floor, I find that Mr McColl was probably visiting Ms Bosley. I find that Mr McColl was a licensee of the occupier of apartment S1209.
(f) Mr McColl entered the car park without a swipe card. Is the applicant liable for the MFB false call out fee caused by Mr McColl’s negligence?
21. The Owners Corporation Act 2006 imposes a duty upon lot owners and occupiers to comply with the Act and the rules of the Owners Corporation and not to damage common property.
22. The owners corporation relies upon sections 128, 130 and 141 of the Owners Corporation Act 2006 to support its contention the applicant is liable for the call out fee.
23. Sections 128 and 130 provide as follows:
128. Compliance with laws VCAT Reference No. OC1493/2013 Page 5 of 7A lot owner must comply with this Act, the regulations under this Act and the rules of the owners corporation.
130. Care of common property. A lot owner must not use or neglect the common property or permit it to be used or neglected in a manner that is likely to cause damage or deterioration to the common property.
24. Section 137 imposes an identical obligation upon occupiers of lots. 137. Duties of occupiers of lots An occupier of a lot- must comply with this Act and the regulations under this Act and the rules of the owners corporation; and must not use or neglect the common property or permit it to be used or neglected in a manner that is likely to cause damage or deterioration to the common property.
25. Section 141 provides as follows:
141. Who is bound by the rules? The rules of an owners corporation are binding on-
the owners corporation;
the lot owners;
any lessee or sub-lessee of a lot;
any occupier of a lot.
26. The Act imposes a separate liability upon the lot owner and occupier not to damage common property and comply with the owners corporation rules. The Act does not make owners liable for the actions of an occupier unless the actions were permitted by the owner. By letting her apartment to Yezz Pty Ltd the applicant did not permit Mr McColl to drive his oversized vehicle into the car park without a swipe card, nor could she have reasonably contemplated that Mr McColl would do so. I find that the applicant did not permit the action by Mr McColl which caused the fire alarm call out. The applicant is not liable for the call out fee under section 130 of the Owners Corporation Act 2006.
Do the rules impose a liability on the applicant for the call out fee?
27. The rules relied upon by the owners corporation are Additional rules 10.4, 16.1 and 24.4. The rules are binding on lot owners, occupiers, lessees and sub lessees.
28. Rule 24.4 deals specifically with false alarm call outs by the fire brigade. In my view, upon a plain reading of the rule, it does not impose a liability upon the applicant for the false fire alarm call out caused by either an occupier or an invitee of an occupier.
29. Rule 24.4 provides as follows: VCAT Reference No. OC1493/2013 Page 6 of 7
To avoid a false alarm call outs by the Fire Brigades (ie the Fire Brigade are called out on site when there is no fire or danger to occupants), a Proprietor or Occupier of a Lot must not:
(a) smoke in the common areas; being the corridors, floor landings, foyer, lifts, stairwells, swimming pool area, gymnasium and car-park or such other parts of the Common Property as the Body Corporate or its Manager may designate from time to time;
(b) Open their apartment door leading to the lobby in non dangerous instances such as smoke from burning toast or other food, to eliminate the resulting smoke from their lot. Only windows should be opened to allow smoke to escape in non dangerous situations;
(c) Open the door to their Lot whilst having steam cleaning or dry cleaning of their carpet undertaken;
(d) Utilise fire hoses or extinguishers except in the case of an emergency,
(e) Leave open the entry door to their Lot whilst having building works undertaken.
Note: In cases of negligence resulting in a False Alarm Call Out to be made by the Fire Brigade, the associated costs will be charged to the Proprietor or Occupier identified as being responsible.
30. In my view the rule imposes an obligation on the lot owner to pay the associated costs of a false alarm call when the lot owner is responsible for the negligence resulting in the false call out. The rule, in its present form, does not impose a liability upon the lot owner for the negligence of the occupier, tenant or licensee of the lot.
31. In this case, the lot owner was not responsible for the false call out. Mr McColl a licensee of the occupier was responsible for the false alarm call out. The applicant is not liable under the present rule to pay for the false alarm call out fee.
32. Rules 10.4 and 16.4 are identical rules. They provide as follows: A Proprietor or Occupier of a Lot shall compensate the Body Corporate in respect of any damage to the Common Property or personal property vested in the Body Corporate caused by that Proprietor or Occupier or their respective tenants, licensees or invitees.
33. In my view, the rule makes a lot owner liable for damage to common property caused by the lot owner, or the lot owner’s tenant, licensee or invitee. Putting aside the meaning of damage and whether damage includes a false alarm call out fee as a result of damage, I find that on a plain reading
of the rule, the applicant is not liable to pay the false alarm call out fee because Mr McColl was not her tenant, licensee or invitee. VCAT Reference No. OC1493/2013 Page 7 of 7
Costs
34. The respondent applied for the reserved costs of the adjournment on 26 September 2013 on the grounds that the applicant did not need an interpreter having shown reasonable proficiency in the English language. I find that the applicant required an interpreter, notwithstanding that she showed reasonable proficiency in English. English was the applicant’s second language and it is both reasonable and necessary that she have an interpreter to assist her. I am satisfied that she had difficulty in reading and understanding some of the documentation. Unfortunately, on the day of
hearing the interpreter could not stay beyond the 1.5 hours allocated for the hearing. The proceeding was able to continue without the interpreter due to the presence of the applicant’s daughter. The respondent’s application for costs is refused.
CONCLUSION
35. There will be an order declaring that the applicant is not liable to pay the false alarm call out charges and an order directing the owners corporation to remove the associated charges and interest from the applicant’s account.
MEMBER L. ROWLAND