The air conditioning system in the unit owned by the applicant was not operating. While the owners corporation acknowledged that it would usually be responsible for the repair and maintenance of the air-conditioning unit, in this instance the owners corporation refused to repair the air conditioning unit as it believed that damage had been caused to the common property by tradesmen engaged by the applicant.

ACAT observed that section 24 of the UTMA specifically requires the owners corporation to maintain utility services provided for the potential benefit of all units. This includes facilities associated with the provision of utility services including utility conduits. A utility conduit is defined in the UTMA (via the UTA) to mean a conduit of any kind for the provision of utility services and includes, for example, pipes, wires, cables and ducts for a utility service. A utility service is defined in the UTA to include gas, electricity and air services (including air conditioning and heating).

The tribunal member was not satisfied on the balance of probabilities that the respondent had established that any of the work undertaken by tradesmen engaged by the applicant or the applicant’s real estate agent damaged the air conditioning or heating systems.

ACAT ordered that the owners corporation carry out all repairs necessary to ensure full operation of the air-conditioning and heating system and pay an amount of $3,367 to the applicant as compensation (which included an amount of $3,135 for loss of rent).

It must be observed that the reasoning in Bennett is somewhat confused in that it ordered that loss of rent be payable as a result of the breach of the section 24 statutory duty.