Body Corporate Issue and My Legal Rights

• 

  MS Paint on 10/12/2020 - 11:36

  Is the ac still working and is it just superficial damage to the casing?

  • 

    SF3 on 10/12/2020 - 11:41

    -1

    OP, yes MS Paint (pun intended ;)) or a photo would be nice.

  • 

    kavinfrost on 10/12/2020 - 11:53

    Hi MS Paint, yes AC still works the body is damage and wires were visible to I covered it to protect from water.

• 

  orangetrain on 10/12/2020 - 11:40

  +2

  Most air cons are on concrete or air. Is yours the exception on grass?

  • 

    kavinfrost on 10/12/2020 - 11:56

    +2

    Hi Orangetrain,

    There is small slab on the grass where aircon unit is on.

    • 

      Almost Banned on 10/12/2020 - 12:23

      What kind of jackass would down-vote this very simple statement of fact?

• 

  sheamas88 on 10/12/2020 - 11:43

  -6

  The body corporate is correct, they have no responsibility to organise the fix for your air conditioner. The gardener is likely a contractor, not an employee of the body corporate, so they aren't responsible for the damage caused by them.

  You beef is with the gardener, although without any proof you are probably not going to have much luck there either.

  I have followed up 5 times now and not receiving any communications.

  As the body corporate behaviour is so rude I have to live with it.

  If you constantly hassled me about a problem that had nothing to do with me I'd probably be rude too.

  • 

    Almost Banned on 10/12/2020 - 12:27

    +5

    If, as the OP suggests, the body corp is responsible for maintaining the garden, and engaged the gardener to do this work on their behalf, then the body corp may be responsible as the principal for the act of their agent - also sometimes called vicarious liability.
    While the OP may wish to take it up with the gardener directly, they are not obliged to do so.
    In short, you are wrong.

    • 

      sheamas88 on 10/12/2020 - 12:59

      Interesting, do you care to comment on the following then?

      http://www5.austlii.edu.au/au/journals/SydLawRw/2007/5.pdf

      My understanding is that unless the body corporate is the sole contractor of the gardener, then they wouldn't be held vicarious liable. So unless the gardener only does work for this body corporate company then it's unlikely they have any issue here.

      If for instance it was an Uber driver, who only ever drives for them, then Uber could be held liable for the driver since they are the sole employer, even if the driver is technically a "contractor"

      • 

        Almost Banned on 10/12/2020 - 14:06

        In my post I said 'may' because we don't know all the facts around either the body corp's obligations, or their arrangements with the gardener - so my post may have been a little bit harsh.
        In short, it is not always easy to identify the circumstances in which VL will arise, so you can't just dismiss it out of hand.
        I am slightly leaning towards it applying based on Hollis v Vabu - but without knowing all the circumstances we can't really say - and it is becoming much harder to make these types of calls in the gig-economy world.
        I didn't downvote BTW.

        • 

          sheamas88 on 10/12/2020 - 14:56

          @Almost Banned:

          we don't know all the facts around either the body corp's obligations, or their arrangements with the gardener

          Without any proof the body corp has little reason to act. To me the OP reads that he suggested the gardener caused the damage when contacting the body corporate and they forwarded him onto the gardener. The body corp has not acknowledged any liability on their, or the gardeners behalf. Seems the only reason the gardener is being blamed is speculation.

          Unless OP is going to take this to court to try and prove the body corp are VL, then it's far more likely he will get compensation from the gardener than from them. So my comment is probably the best advice and getting into difficult questions like VL over probably less than $300 is not really important to OP.

          I didn't downvote BTW

          I don't concern myself with downvotes, and neither should you. Particularly when there is no replies stating why.

• 

  dogboy on 10/12/2020 - 11:52

  +2

  When is the next body corporate meeting? Can you not raise the issue there and also request for change of body corp management if you are not happy?
  A picture of the damaged unit would help.

• 

  Seraphin7 on 10/12/2020 - 11:54

  -1

  Recently the gardener move the front yard of the unit and I notice that that my Aircon unit which is placed on the front yard is badly damage.

  What do you mean the gardener moved the front yard?

  What sort of damage has happened to the aircon? Is it reasonable that the damage might have been done by the gardener in the context of the work they did? (I'm assuming you have no "real" evidence of either the timeframe of the damage or the gardener actually damaging the unit).

  • 

    spackbace on 10/12/2020 - 11:56

    +3

    What do you mean the gardener moved the front yard?

    I'm guessing "mowed"?

    • 

      Seraphin7 on 10/12/2020 - 11:56

      Ah, that actually would make a bit more sense. OP?

  • 

    kavinfrost on 10/12/2020 - 12:18

    Yes you're right I don't have any evidence to prove if gardener done the damage. I know the timing when gardener were mowing the grass and also I saw the grass near the unit which I sent photos to show what has been done.

    The damage like grill which protect the fan were bent and plastic cover which hide the cables is broken

    • 

      payton on 10/12/2020 - 13:01

      I took the photos of the aircon unit and send that to body corporate, they replied and said as the damage is done by the gardener

      but the Body Corp told you it was the gardener, so someone from the bodycorp noticed it, or the gardener owned up to the fault while talking to the B.C?
      or was it just a blanket 'oh they did it' pass the blame thing without any real basis.

• 

  websterp on 10/12/2020 - 11:59

  What do you mean the gardener moved the front yard?

  I think op meant mowed

  • 

    pjetson on 10/12/2020 - 12:21

    +4

    Maybe the gardener moved the front yard to a sunnier spot?

    • 

      MS Paint on 10/12/2020 - 13:36

      +2

      Now north facing.

      Property value increased 30%. You should be thanking the gardener.

• 

  kavinfrost on 10/12/2020 - 12:25

  The reason I posted here is know if there something I can do? Also when I contacted my body corporate they ask me to deal with gardener directly. Should I be contact them directly or body corporate as I am paying body corporate for gardener service.

  • 

    [Deactivated] on 10/12/2020 - 12:35

    +2

    something I can do?

    If you are 99% sure the gardener did it, call, email, constantly, 'you broke my stuff you pay'

    body corporate as I am paying body corporate for gardener service.

    Your body corporate should step in as they hired these people, how is it not THEIR responsibility?
    However they sound like useless parasites and you should probably move.

    • 

      NatoTomato on 10/12/2020 - 12:38

      +6

      I don't think I've ever dealt with Body Corporate who weren't useless parasites.

• 

  Hithere on 10/12/2020 - 12:37

  +1

  Another vote for pictures from the OP.

  They've been asked a number of times and have ignored all requests.

• 

  Headless on 10/12/2020 - 13:23

  -5

  Your screwed either way

  No-one will accept liabilty even if they are at fault - only if they get caught doing so.

  Go to GG and buy another air con - life is unfair, just be glad he/she didn't key your car on the way out "for kicks"

  • 

    payton on 10/12/2020 - 13:25

    +3

    just be glad he/she didn't key your car on the way out "for kicks"

    wtf, why would a tradesman key someone's car in broad daylight and risk so much for stupid things like this? Especically if unprovoked
    you're confusing tradies with juvenile offenders?
    what is this nihilistic bs

• 

  Quantumcat on 10/12/2020 - 13:35

  +1

  You could get a quote to fix it and send a letter of demand to the body corporate.

• 

  netjock on 10/12/2020 - 14:17

  You have a contract with body corporate who went out and got a contract with the gardening company.

  Unless body corporate issues you with a letter giving you authority to act otherwise they need to sort out anything that goes wrong. It is why if they missed mowing your garden you contact the body corporate not the gardening company direct.

  I have a body corporate that is similar, charges you good money but too lazy to do their job.

• 

  jjjaar on 10/12/2020 - 14:23

  -1

  Did the committee approve the gardener or did the body Corp just appoint one?

  Just a reminder that if you contact body corporate you are paying them ~$150 an hour to deal with that issue. Even opening an email and they will charge you 15 mins. This comes out of all your fees etc so it may actually be easier in the long run to just deal with the gardener directly.

• 

  Meho2026 on 10/12/2020 - 14:24

  +1

  All strata managers are the devils spawn, they are the lowest of the low, worse than real estate agents, car salesmen and cops, accept this before anything else.
  Your first issue is that if the aircon unit can be damaged by the gardener, it can be damaged by anyone else who has access to the garden. Can you prove it was the gardener? Did they crash into it with a mower? Is there any evidence?
  Put that aside for now.
  It sounds like the damage is only cosmetic. What is the remedy you are seeking?
  Get a quote to repair or replace the casing of the unit if thats all thats damaged. Use this quote for the basis of your claim.

  As an owner you can actually make a claim directly with the strata insurance company. You just need the details from the strata manager, they cant refuse to give you this.
  You can also approach members of the executive committee and ask them for assistance, the exec committee are really the only people that direct the strata manager. The strata manager pretty much has to do what they say. The strata manager must inform you of who the committee members are or it will be in the minutes of your last AGM, which they must give you too.

  You can inform the committee that you expect the repair to be paid by the body corp or the strata insurance and if that is denied you will lodge a complaint to the Dept Fair Trading (I'm in NSW this is where we go first).
  Explain that this sounds extreme but the strata manager has inflammed the situation by their absolute refusal to communicate with you. Make the strata manager sound like a right (profanity).
  If the repair isnt a lot of money the exec committee will just tell the strata manager to pay it. Committee members are obligated to always act in the best interests of the building. Incurring excessive costs for strata managers attending mediation and a tribunal or increasing insurance premiums is not prudent.

  If they wont play ball, lodge the complaint, you will probably have to make the complaint about the exec committee rather than the strata manager. The first step is mediation but you dont have to agree to that, you can skip it and go to a tribunal and have a judgement made. ,

  Next thing is you have to get yourself on the committee. This can be done by nominating yourself at the next AGM.

• 

  Summoner on 10/12/2020 - 16:03

  +2

  When you pay body corporate for the gardening, they are responsible for the damage occurred during the service.
  If the do it themselves, employee someone, or hire subcontractor for the job is irrelevant to you. I would demand a resolution from the body corp. It is them who has to chase the gardener for the repair not you.

  However, if they deny responsibility, there would not be easy solution. I would just stop paying for the gardening service of the body corporate and look for a gardener on my own.