The applicants were the owners of a unit in Units Plan 3488. One morning when the applicants were not present in the unit, a hose connected to the mains in the toilet cistern broke and water flowed out of the cistern into the apartment and into the common property in the hallway.  There was consequent damage. The respondent owners corporation met the expense of cleaning the common property carpet and sought reimbursement from the applicants. Since the applicants were selling the unit, they reimbursed the respondent under protest and brought the proceedings to recover the payment to the respondent.

The applicants’ case was, as the cistern was reasonably new and was apparently in good working order, the cause of the bursting pipe could not be established and the applicants had taken all reasonable care in the circumstances. The position of the respondent was that the applicants as an owner of an apartment are responsible for the fittings or appliances in the apartment and although the event that occurred was not reasonably foreseeable, the applicants were the only persons in control of the apartment and consequently they were responsible for the leak. As an alternative, the respondent suggested that the applicants were negligent in that they did not turn off the water supply to the cistern when leaving the apartment.

Section 31 of the Unit Titles (Management) Act enables the respondent to recover the costs of repair from a unit owner who has willfully or negligently caused damage. This entitlement did not, however, extend to the type of faultless liability or absolute liability proposed by the respondent. Section 31 is consonant with the common law situation, with the High Court abandoning earlier notions of strict liability and applying familiar principles of negligence as the basis for liability.

As to the alternate submission of the respondent that the applicants were negligent in not turning off the water supply to the cistern when leaving home, ACAT held that there may be a period of time after which community standards and expectations may be breached if the water is not turned off in anticipation of an extended period of vacancy. However it was not necessary to define the dividing line between what is reasonable and unreasonable since the period involved in this case was well within the limits of reasonableness.

Therefore, in the absence of negligence on the part of the applicants, the respondent was not entitled to seek to recover the costs of cleaning the common property. The applicants paid under protest and are entitled to an order for payment of the amounts paid to the respondent.