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The rats ate my car

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Mr Boyes was a resident of the Yves Apartment Building in St Kilda Road. In August 2007 he had parked his BMW in the underground car park at the Yves building. When he went to start it on the 28th August 2007 it wouldn’t start. He discovered that the wiring and rubber in the car had been eaten by rats.

As you would expect Mr Boyes was quite annoyed with the rats and gave some initial thought to suing the rats but decided that it would not be appropriate because:

  • They were probably rats of straw
  • They are pretty quick and they would therefore be extremely difficult to serve
  • In all likelihood the rats probably had lawyers as close friends who may take the matter on without being paid

He decided that he would sue the Owners Corporation on the basis of:

  • Private nuisance
  • Common law negligence
  • Statutory breach under the Owners Corporation Act

The matter was heard at VCAT. They decided that they did not have the jurisdiction to hear a claim in private nuisance or common law negligence but could hear the claim for a breach of statutory duty. In particular, sections 4, 5 and 46 of the Owners Corporation Act which state:

“4. An owners corporation has the following functions-

(a) to manage and administer the common property;
(b) to repair and maintain-
(i) the common property;
(ii) the chattels, fitting, fixtures and services related to the common property or its enjoyment; …”

“5. An owners corporation in carrying out its functions and powers-

(a) must act honestly and in good faith; and
(b) must exercise due care and diligence.”

“46. An owners corporation must repair and maintain-

(a) the common property; and
(b) the chattels, fixtures, fittings and services related to the common property or its enjoyment.”

There had been some evidence that, just before Mr Boyes car was “eaten”, the rats had taken up residence in the basement (although they had not been there long). Also that there was no ongoing pest control undertaken in the basement. The rats were probably waiting for completion of some other building nearby that were even more upmarket than the Yves building.

The result was that Mr Boyes lost and the rats and the Owners Corporation won. It was basic knowledge that the Owners Corporation did have the duty to manage the basement area which was part of the common property, but the Owners Corporation in the case acted reasonably and were not required to have an active pest control regime in place.

From the tone of the VCAT decision, Mr Boyes could have been successful if he had sued the Owners Corporation in negligence, which would probably have been easier to prove. The current location of the rats is unknown. It is also unknown whether they still have a preference for German food or are also prepared to widen their diet to include Japanese food.

If you need any advice in relation to how the law applies to rats or Owners Corporations please contact one of our Commercial lawyers.

Authors: John Turnbull & Anastasia Tsiounis