VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
OWNERS CORPORATIONS LIST	VCAT REFERENCE NO. OC1492/2023
CATCHWORDS	
Work carried out on common property by a tradesman engaged by an owners corporation, liability of the  owners corporation to a lot owner for alleged damage to the lot owners property alleged to have been caused by the tradesman, agency not found, application dismissed.	

APPLICANT	Tapan K Basu	
RESPONDENT	Owners Corporation Plan No. 25989	
WHERE HELD	Melbourne	
BEFORE	J Sharkie, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	9 July 2024 and 25 July 2024	
DATE OF ORDER	25 July 2024	
Date of written reasons	
1 October 2024	
CITATION	Basu v Owners Corporation Plan No. 25989 (Owners Corporations) [2024] VCAT 941	

Order
The proceeding is dismissed for the reasons given orally at the hearing.

J Sharkie
Member			

APPEARANCES:		
For Applicant	Ms A Basu, representative and attorney under power	
For Respondents	Ms D Lind, committee member	

Reasons
PREAMBLE 
1	On 25 July 2024, I delivered oral reasons in this proceeding.
2	On 5 August 2024, the applicant requested written reasons.
3	These written reasons accord with the oral reasons delivered on 25 July 2024 save for necessary grammatical and clarity amendments.
BACKGROUND
4	This is an application brought by Mr Tapan Basu against the Owners’ Corporation Plan No.25989 being the owners corporation of the building at 78 Queens Road, Melbourne, which I understand from the evidence (and I think it is fairly apparent to everybody) is not a new building. It is a building that has been around for a while, and as often happens, with any property that has been there for a while, things wear out, pipes burst, leaks occur, windows break, things happen. 
5	Mr Basu was represented today by his sister, Ms Basu, and at the previous hearing. Ms Basu, who was duly authorised to appear and produced a power of attorney, assured me that Mr Basu was cognitively sound, and in fact there was an email in the Tribunal documentation from Mr Basu authorising Ms Basu to give the evidence, and appear on his behalf, and it was appropriate that this occurred because she is the person who lives in apartment 15.
6	The application was heard over two days. There was insufficient time on the first day of the hearing on the 9 July 2024. The parties had a discussion and with the evidence of Ms Basu and Mr Hood, we just simply ran out of time on the first day, which brought us to today to complete the matter.
7	I will provide a brief summary of the evidence. I am not intending to go through the evidence word for word, but just really the important aspects of the evidence.
8	In essence, pursuant to the application made on behalf of the applicant, the allegation is that some works were required to the common stack. These were plumbing works. Those works were undertaken by a plumber. What the applicant says, (and reading from the application) is that subsequent to the commencement of the works, some of the tiles of the bathroom of the apartment were damaged by way of cracking which appeared on some of the tiles.
9	The claim made is for $1,100.00. That is a claim relating to the replacement of four tiles, but as Ms Basu indicated today, the claim of $1,100.00 is something that I would need to adjust because there are three tiles that are damaged.
EVIDENCE AND SUBMISSIONS OF THE APPLICANT
10	Evidence from Ms Basu was that in early 2023 there was a leaking ceiling in the apartment. Water escaped affecting the bathroom and the bedroom. Water was dripping through. She took me through her evidence, and she provided me with photos of tradesmen on the job. There was a need for the work to be undertaken. There was an obligation, a clear obligation, on the Owners Corporation to attend to these works.
11	On 27 March 2023, the works commenced. Ms Basu found it was just too noisy to remain in the apartment. There was jack hammering. She produced photographs. These photographs showed that there were tradesmen on site.
12	She gave evidence that a tradesman came into the property on 31 March 2023 to take photographs. She wanted a condition report, but that was never provided. She gave evidence that (not that this was relevant to the current application) there was mould on the ceiling due to water leaks. 
13	The tiles, she says do contain a vertical crack and those tiles have been damaged.
14	Ms Basu received an email on the 11 April 2023. That email was about having repaired the common stack issue or that works had been undertaken. There was some rectification work required to the apartment to tidy up, fix up and rectify the damage caused by the water leak. But there was no reference to the cracked tiles. She drew my attention to the emails which were contained on pages 12, 13, and 14 of her material, and drew the inference from those emails that the Owners Corporation seemed to be going to fix the cracked tiles.
15	Ms Basu says that the tiles were cracked because of the works that were being undertaken.
16	She provided a letter from Prior Law solicitors in relation to an unassociated matter, which from my perspective did not really take her case any further. 
17	She drew my attention to the fact that the information coming back from the Owners Corporation was that the tiles were cracked with age. She says that position is unsubstantiated.
18	The claim that the applicant makes is for $1,100.00 is reliant on the quotation provided from Melbourne Property Maintenance Solutions Pty Ltd, but Ms Basu did say that the quotation is in respect to the replacement of four tiles.
19	She also drew my attention to a comment from Ark the principal from Watermark Plumbing, who says that the cracked tiles in his opinion were old cracks. She drew my attention to the photographs that she provided, and she says that the cracks were caused by these works.
20	Under cross examination, a question was asked, whether it is three tiles which are involved. Her response was that a mistake was made. 
21	A question was asked in relation to the Prior Law (solicitors) letter, but that (letter) related to a different job. What Ms Basu was trying to point out was that the plumber was not always showing, (her words) “professional judgement”.
22	I then asked Ms Basu some questions as to how she says the damage was caused by the Owners Corporation. She says it was caused by the jack hammering that was undertaken by the plumber, or the works, or the trades. She says the damage was caused by the Owners Corporation’s agent, the plumber and he was engaged by the committee of the Owners Corporation, so the plumber, needed to (and those her words) – “work it out with the Owners Corporation”, and what I understood that to mean was that the damage issue needed to be sorted out by the Owners Corporation, but through the plumber.
EVIDENCE AND SUBMISSIONS OF THE RESPONDENT.
23	On the first day of hearing, I heard from Mr Benjamin Hood who, carries on business under a construction company known as the Property Doctor. He provided evidence that he does work in the building and explained the intricacies (best way I can describe it) of the structure of the building. He said that in these jobs, the type of slab that exists is quite thick between the floors. The adhesive that is used for the floor tiles, are wet laid and become part of the substrata, and tiles hard to get off. I found this evidence to be quite honest.
24	He said, while it is possible for vibration to transfer damage, but he would have seen it. He said you cannot have a spasmodic crack in this setting because it is a double brick building. There is a cement overlay in the walls and the tiles are laid on top of that cement overlay. 
25	He says that he is aware of evidence of pile driving to the building next door five or six years ago. He speculated that the damage occurred at that time.
26	He said that it is never impossible for damage of this nature to occur, but he would have expected to see a continuous hairline fracture. He was shown or referred to photos, he says the cracking seemed to have occurred at different times in the photographs, because the penetration (as he called it) of residue is not the same. He says that cracking tends to follow the mortar line. 
27	He said that in the works that he has done over the period of time on this building with the jack hammering, there has never been a complaint from apartments underneath.
28	Ms Basu in cross examination, asked, how can he be so sure that it is not possible for cracking to occur. He said in his experience, it is improbable, but agreed in answer to the question, that he had never actually attended the apartment to see.
29	Ms Lynn provided evidence, basically by way of summary, that her view was that there was simply insufficient evidence to establish the claim being made by the applicant.
30	She pointed to the fact that the plumber says that cracks are due to the age issues, and also pointed to Mr Hood’s evidence that the jackhammering is unlikely to cause a cracking.
31	She refers to the rectification quote in May 2023, and says there is no mention of replacing tiles in that document. Nor (is there any mention) in the invoice of the actual rectification work of July 2023, which on the face of it, certainly does not mention tiles, but talks about painting and matters of that nature.
32	She says there is, from the Owners Corporations perspective, a denial of liability because there is no evidence, to support the claim.
33	She submitted that there were no images to support the applicant’s position. There was there was a great deal of discussion as to whether they were photos or images taken by the phone (or however they were taken). But there are a set of images. But she said, look, the images simply, in her opinion, did not support the quotation. 
34	She took me to the email received from Watermates which stated that the tiles were old, and this was old damage.
35	Ms Lynn acknowledged how the claim is put, that the jack hammering between these dates 27 and 30 March 2023 caused the cracking but says that the images have no dates on them and could have been taken before. 
36	Ms Lynn repeated the plumber’s view that the cracks are old age and that it is Mr Hood’s view that jack hammering was unlikely to have caused the damage.
37	Under cross examination, Ms Lynn was asked as to why the scope, or the sequence of events was changed. Ms Lynn could not answer that question.
38	There was then some questioning about whether Watermate’s view was credible or was a person whose advice I should take into account in evidence even though he was not called to give evidence. Really the questions here were a matter for me to decide.
39	There was also then question about the whether the water running down into the tiles might have been discoloured or dirty, and that might have been an explanation as to why Watermates thought it was old damage. The suggestion was that the water would have been dirty. Ms Lynn was of the view that the water was clean. It was not wastewater, albeit the leakage had continued for some weeks after the pipe burst.
40	There was a question about the three tiles that were affected being in a line. Ms Lynn said that they were not in a line, and therefore, there is insufficient evidence.
41	In short, Ms Lynn’s view was there was simply a lack of evidence to prove the position both in respect to the cause and also to when the cracks that arose, and really that comes back to what I make of it.
FINAL STATEMENTS
42	In her final statement, Ms Basu believed that the evidence she provided was consistent with the position that the cracks were caused by the work that was being done, namely the drilling and the jack hammering. She raised the issue that Stage 2 of the works seemed to have been undertaken before Stage 1.
43	Her view of the other evidence (meaning from the respondent) was that it simply did not detract from her position.
44	She explained the photos, given that they were not professionally taken, were not taken by a camera, but rather by a phone, that she is no expert. I understand that position. She repeated that only three tiles that have been claimed. There is one invoice for $1,100 and really it is for me to make any determination in that regard.
45	She repeated her view that the Owners Corporation is responsible. Tradesmen have caused the damage, the Owners Corporation engaged the tradesmen therefore the responsibility lies there, the comment being she had no contract with the tradesmen.
46	In final summary, Ms Lynn said there was no evidence. The images did not have any dates or time and reiterated the professionals’ view of the damage to the tiles, how the damage could not have been caused by jack hammering and that they were aged.
DETERMINATION
47	In this matter, what we call the onus of proof or burden of proof, lies with Ms Basu. The Owners Corporation really does not have to prove anything. The Owners Corporation has provided evidence in response, which I need to take into account, but the burden of proof lies with Ms Basu.
48	Her claim is against the Owners Corporation because she says, the Owners Corporation’s tradesmen have caused the tiles to become cracked or damaged.
49	It is quite clear, and I find, that there was a problem with the common stack. It had a leak, which developed a water issue which affected the apartment and that needed to be rectified.
50	Arrangements were put in place for plumbers to attend to the work. What Ms Basu says, is that the work had already commenced by the time anybody came to her apartment to look at it and take photos, and she was not given a condition report at that time. She says that the damage to these tiles occurred subsequent to the work being undertaken.
51	She provided a quotation to rectify four tiles, but in the course of the evidence said that one of those tiles was damaged when work was being done to a shaving cabinet, and that it is really a matter for me.
52	There is a point, and I will cover this point now, as to whether the Owners Corporation actually admitted responsibility. Ms Basu drew my attention to range of emails where she thought the Owners Corporation was going to repair the tiles. On careful examination of those emails, I do not share her view that this is the position. What those emails seem to be directed to is that the Owners Corporation needed more information. There is no clear admission of liability contained in those range of emails.
53	 The question is then were these tiles were damaged. Ms Basu says somewhere between 27 and 30 March 2023. Ms Basu produced photos. I note that no immediate complaint was made to the Owners Corporation. It was made, or it first surfaced on 11 April 2023 in response to rectification of works, but it is not immediately made. In response to that, she said, look the noise was so bad in this apartment I could not really live there. I was in and out, I was showering at the local gym, meaning she was not using the bathroom. I took from that remark, that she was not there.
54	The Owners Corporation in respect of the damage says it unlikely to happen on experts’ evidence, and it was old damage. But this issue, if it is relevant to my decision, is a matter on balance for the applicant to prove.
55	The more important question in my mind, is how the Owners Corporation becomes liable. Even if I accept Ms Basu’s theory, or thesis or proposition or contention that the jackhammering caused the problem, how does the Owners Corporation become liable? It is the tradesman, it is the plumber, it is the worker upstairs who is carrying out the jackhammering. Ms Basu says that damage was caused by the Owners Corporation’s agent. She says it is the plumber, who is commissioned by the Owners Corporation, and the plumber needs to work things out with the Owners Corporation. She says it is the Owners Corporation’s responsibility.
56	Now, as a matter of law, there are circumstances where the acts of one person can become the liability of another. That principle can arise in two ways. One is called vicarious liability, and that can often be the case where an employee in the course of working for a company carries out some act negligently. In such circumstances, the employer becomes liable for the act of that person. That principle is not available in this case, because the person carrying out the work or trade is not the employee of the Owners Corporation.
57	The other way liability may attach is if that the person carrying out the work was an agent of the Owners Corporation.
58	 I do not accept that proposition. The person carrying out the work, the plumber, is simply a tradesman, engaged by the Owners Corporation to carry out some works. The Owners Corporation is not liable for the ancillary damage, if it was caused by carrying out that work.
59	Having said that, if there was an issue with the stack and the stack had not been repaired properly, then in those circumstances there would be a continuing obligation on the Owners Corporation to rectify the stack works under its duty to repair any damage under the Owners Corporations Act 2006 (Vic). But that is not the case here. What we have here is somebody is carrying out work, somebody who is an independent tradesman of the Owners Corporation.
60	The argument by Ms Basu is that the jackhammering and the work undertaken has caused the problem. Whether it was caused through the act of jackhammering or ineffective protection, those matters are not the responsibility of the Owners Corporation. The Owners Corporation engages an expert tradesman to do the works. If the expert tradesman in doing those work causes some ancillary damage, the problem lies with the tradesman, not the Owners Corporation.
61	It is not, therefore, for the purposes of my decision, necessary for me to determine whether the damage was pre-existing or not. There is a more important issue. The issue is, even if I accept that the damage was not pre-existing, even if it is accepted that the damage was caused by the works of the tradesmen, and in fact by jackhammering or failing to adequately protect, that was not the liability or responsibility of the Owners Corporation. The tradesman carrying out the work is totally independent. He is not an employee, agent or otherwise connected with the Owners Corporation. For that reason, the application will fail and is dismissed.
62	The order I will make is that the application is dismissed.

J Sharkie
Member