In a Nut Shell

Two decisions from the Victorian Civil and Administrative Tribunal (VCAT)

1.Is an Owners Corporation or the apartment owner responsible for payment of a Metropolitan Fire Brigade false alarm call-out fee of $6,071 plus clean up charges of $660?

A visitor to an apartment drove into the building car park with a large luggage rack installed on the roof of the vehicle. The vehicle did not clear the height barrier and hit an overhead sprinkler, activating the fire alarm and causing three fire trucks to attend the property.
At the time, the vehicle’s driver verbally admitted to damaging the sprinkler, but it was later discovered that there was no history of his vehicle entering the car park using the swipe card attached to the apartment – nor was CCTV evidence produced of the driver moving through the building and entering the apartment. The CCTV was taped over within six weeks.
The owner’s apartment, along with other apartments in the building, were leased to a company that operated them as short-term serviced apartments at a fixed monthly rental to the owner, irrespective of the occupancy rate.
A person had hired the apartment for one night and had a licence from the tenant to occupy the apartment.
The Owners Corporation argued that the apartment owner was liable for the fee and charges because the driver of the vehicle was either an occupier or an invitee of the occupier. The apartment owner argued there was insufficient evidence that the driver stayed at her apartment that evening and she was not liable for the fee and charges. Based upon the plain reading of the Owners Corporation rules, VCAT determined the apartment owner was not liable to pay the false alarm call-out fee because the driver was not her tenant, licensee or invitee.
An order was made directing the Owners Corporation to remove the associated charges and interest from the apartment owner’s account.

Lee v Owners Corporation No 501391P [2013] VCAT 1942 [20 November 2013]

2.Use of the visitor car parking space

Over a period of seven months, an Owners Corporation gave three notices to a unit owner for being in breach of its rules for continuously parking a motor home in the visitor car parking space.

The notices were ignored so the Owners Corporation took the matter to VCAT.
VCAT ordered the unit owner to immediately comply with the Owners Corporation rules by not parking the mobile home in the visitor car parking area.

Owners Corporation PS324753R v Callander [2013] VCAT 2014 {is August 2013}

Three decisions from the Supreme Court of Victoria

1. An Owners Corporation was held responsible when a visitor was injured attempting to exit the property by climbing over closed gates that didn’t open due to a power failure.
Brown, Colin Keith v Owners Corporation SP021532 U and Bensia Thirteen P/L- 21 March 2013

2. A unit owner failed in a bid to avoid contributing to the Owners Corporation cost of repair works to the building’s balcony balustrades, upon the basis the unit owner and four other units did not have balconies.
Mashane P/L v Owners Corporation RN328577 -14 August 2013

3. A Transfer of Land records purchasers’ interests as either joint proprietors or tenants in common in equal shares. In this case, two brothers purchased a property in 1977 for business purposes.

As the Transfer of Land did not mention how the property was to be held, registration on the Certificate of Title defaulted to joint proprietors. After the death of one brother, his estate opposed the transfer of the property to the remaining brother, arguing it had always been the brothers’ intention that the property should be held by the brothers as tenants in common in equal shares and, upon the death of each brother, the shares should pass to their respective families. Upon considering the evidence presented, the court agreed with the deceased brother’s estate.
Stassinopoulos v Stassinopoulos -12 December 2011