Ascertaining the extent of your caretaking duties and when you can carry out and be paid for additional duties may not be as straightforward as first appears. Common disputes we often see between caretakers and bodies corporate centre on when caretakers can charge for work which extends beyond the duties in the caretaking agreement and when the services of a tradesman or contractor can be relied upon.

It is important to understand the exact extent of your caretaking duties and what type of work (if any) is excluded from those duties. Ideally your agreement should not require you to perform any work of a specialist nature which include any duties which reasonably require the services of a skilled tradesperson or specialist contractor. While there is a distinction between “tradespersons” and “specialist contractors”, it should not be of particular concern if your agreement does not provide an exclusion for both. Where a reference is made to “tradesman”, adjudicators have applied a wider construction by not limiting the reference to readily identified tradesmen such as plumbers, electricians and the like.

If there is such work which requires a tradesperson or specialist contractor it will not necessarily be the case that the caretaker can engage one to carry out the work involved. That will depend on the terms of the caretaking agreement. Typically there will be provisions which allow the caretaker to expend up to a specified amount on any items necessary to carry out the duties. Such provisions are usually designed to allow the caretaker to obtain, on behalf of the body corporate, materials and equipment necessary to perform duties. It is unlikely that such a provision allows a caretaker to engage the services of contractors/tradespersons without body corporate approval. However some caretaking agreements do allow for that and the provisions should be carefully considered.

What if such a duty which is not the responsibility of the caretaker is one that the caretaker can in any event perform? The same question can be posed for duties that do not require tradespersons or specialist contractors but are beyond the duties specified in the caretaking agreement.  Can the caretaker just do them and charge the body corporate?

It should never be assumed that a caretaker can charge for such additional work. You should first check whether your agreement has provision for additional work to be performed for an appropriate fee and what requirements or conditions there are to carry out and be paid for such work.

The practical issue we see is that caretakers will often perform work and then charge the body corporate without first having obtained authority or agreement to do so. Unless there is specific authority in the caretaking agreement in this regard, which would be extremely rare, a caretaker can never just do the work and charge for it.

Apart from a body corporate having no contractual obligation to pay for such work it presents a number of problems. Apart from the actual ability and expertise of the caretaker to perform the work to the appropriate standard, the work itself may be of a type that requires a licensed tradesperson, giving rise to defect liability and insurance issues for a body corporate.

If you are at all unsure about any particular duties that you may or may not be required to perform, you should consider the following:

• Does the work in fact form part of your caretaking duties (specific and general)? If so it is your responsibility and is covered by your remuneration.
• If the work is beyond your caretaking duties but does not require a tradesperson or specialist contractor then before you can do the work and charge the body corporate for the work you need to reach agreement with the body corporate about that – specifying the work to be performed and the amount you can charge for the work. If you do not do so the body corporate has no obligation to pay you for the work.
• If the work is beyond your caretaking duties and does require a tradesperson or specialist contractor then before you arrange for one check what approval is required from the body corporate. Only if your caretaking agreement clearly allows you to engage such tradesperson or contractor, and expend up to that amount, should you so engage them.

As is the case with any caretaking agreement, the devil is in the detail. Make sure you have a clear understanding of what your agreement requires of you, in what circumstances you can perform and be paid for additional duties and when you are permitted to engage the services of others.

Written by William Kenny

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