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This discussion started on the topic “Strata manager’s fee not divulged to owners” but evolved into these exchanges about how strata schemes pay the costs of running cases when they lose – JimmyT.
spmananger – thanks for your reply. To clarify, I meant “OC” at every instance and not “SC”.
Kaindub – your point on seeking an order that excludes me from sharing in the payment of the strata agent’s fee is a VERY good one. I assume this is facilitated by all other lot owners but me paying their share of the agent’s fee into the strata’s kitty, like a special levy, whilst the agent debits the scheme’s a/c. True?
Please indicate (a) under which order that could be applied for? And (b) can I now seek to be excluded from sharing in this cost ie via mediation and if necessary, bundle this matter up at subsequent NCAT hearing, if one is applied for?
I recall I DID include an order forbidding any committee member from being paid by the OC for his or her preparation for NCAT. While that motion, like most were not dealt with individually, the OC did say at NCAT that they, unlike the applicant, had no intention of debiting the OC for their preparation and time.
Tina – in my experience with a few strata schemes, the agent contributes very little. The $880 is VERY steep given the agent is not so experienced. But maybe he got away with it because his boss is a friend of the strata’s chairman.
- This topic was modified 2 years, 1 month ago by .
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I assume this is facilitated by all other lot owners but me paying their share of the agent’s fee into the strata’s kitty, like a special levy, whilst the agent debits the scheme’s a/c. True?
Cost can be awarded to the exclusion of some owners and must be paid by a special levy. I’m not sure, however, how easy it is to do this retrospectively, after a case has concluded.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Truleconcerned
Read the NCAT website as it speaks about costs orders.( don’t remember what the url is)
You can’t ask for costs long after the case is closed
The time to ask for costs is either in your initial pleadings, or straight after the judgement is handed down.
When asking for a costs order, you don’t need to quote the act. The courts know what it is.When asking for costs, you need to b3 prepared. You need to understand what costs can be asked. You can’t ask for payment of your time preparing the case or payment because you missed work. You can ask for lawyers costs, even if they did not represent you in court.
You can’t get costs at mediation UNLESS the other party agrees to pay ( unlikely) as part of the settlement agreement. However if a settlement is not reached and it goes to court, your costs of attending/ preparing for the mediation can be considered.
Costs are purely at the discretion of the judge, and it has been known for a party to win a case and yet get no costs awarded, or to have to pay the other party.
An owners corporation that is unsuccessful in an action brought against it in NCAT by an owner cannot use the administrative or capital works funds to pay its costs and expenses. It may raise a special levy, but cannot levy a successful owner for a share of the owners corporation’s costs and expenses (s104 SSMA 2015).
TrulEConcerned should not be charged a share of the $880.
An owners corporation that is unsuccessful in an action brought against it in NCAT… cannot use the administrative or capital works funds to pay its costs and expenses. It may raise a special levy, but cannot levy a successful owner for a share (s104 SSMA 2015).
That seemes to be true. Let’s look at what Section 104 says:
104 Restrictions on payment of expenses incurred in Tribunal proceedings(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
(2) An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.
This is interesting in that it doesn’t define “costs” as being sums awarded by a tribunal to one side or another.
So it seems to be saying, and I hope someone will correct me if I’m wrong, that if an owners corp gets into a stoush with an owner and loses at NCAT, it has to raise a special levy to cover its costs for the case and the resident must be excluded from the special levy.
If that’s the case, it’s an elegant deterrent against strata committees routinely running residents through the tribunal treadmill to impose their will, right reason or none.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
- This reply was modified 2 years, 1 month ago by .
To finally nail this one down, here is a response from our sponsors Bannerman Lawyers.
If an Owners Corporation is unsuccessful in proceedings, there are different costs consequences that may apply depending on whether proceedings are commenced in the NCAT or the Courts.
Costs can be categorised into two main types:
- The Owners Corporation’s costs of the proceedings, including legal costs and expert costs; and
- The Owners Corporation’s costs of complying with any substantive orders made by the NCAT or the Court including orders to pay damages.
Costs in the NCAT
If the Owners Corporation is unsuccessful in NCAT proceedings against a lot owner, it must raise a special levy, excluding the successful owner from liability to contribute, to fund the Owners Corporation’s costs of the proceedings. This is automatic and does not require an order of the Tribunal, pursuant to Section 104 of the Strata Schemes Management Act 2015 (“SSMA”), as extracted below:
104 Restrictions on payment of expenses incurred in Tribunal proceedings
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An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
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An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.
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In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Is Mediation citing an order under s. 232 the way to go (where I will list s. 104 as Just Asking mentioned). Or can I go straight to NCAT?
Apply for mediation on that basis and if they don’t agree in writing, move on to NCAT (being sure to ask for costs). They might offer to reimburse you for the levies you should not have paid, which isn’t strictly kosher but would resolve the problem (unless you want the other owners to know how their money is being wasted).
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
You stated that
“By law, a losing strata scheme’s expenses must be paid by a special levy so that the owner who won the case doesn’t have to contribute to the action taken against them.”What is the situation if the positions are reversed. i.e. an owner takes NCAT action against the OC.
As in:
(1) an owner initially tries mediation, but after failing to get the OC to repair common property that was damaging her lot.
(2) initiates an NCAT action against the OC,
(3) the OC defends the action, and during the course of play, pays its ongoing lawyers fees from either the admin or sinking funds, but then
(4) loses the case, AND possibly
(5) has to pay legal costs / damages to the owner, and in addition
(6) do the repairs the owner initially requested.Does there have to be a special levy (from which the initiating owner is excused) raised to cover all of the costs, including any lot, as well as common property engineering inspections & physical repairs, as well as all lawyers fees incurred from the start of the complaint / failure of mediation?
What is the situation if the positions are reversed. i.e. an owner takes NCAT action against the OC.
Basically the same. The relevant section of the Act says it pertains to actions taken by and gaints the owners or strata scheme.
Does there have to be a special levy (from which the initiating owner is excused) raised to cover all of the costs, including any lot, as well as common property engineering inspections & physical repairs, as well as all lawyers fees incurred from the start of the complaint / failure of mediation?
The Act says the strata scheme “cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund …” but can raise a special levt from which the prevailing owner must be excluded.
I’m not a lawyer but I would say that means any expenses incurred specifically in the pursuit of this case and used during the proceedings. Others may disagree, but I think the meter starts running on this when the strata committee or owners corp decides to proceed with or defend an action at the Tribunal.
It would not (IMHO) think anything and everything related to the dispute could be counted, including surveys and inspections before the case commences, and repairs made after it had been concluded.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
- This reply was modified 2 years, 1 month ago by .
Here’s my non-legal opinion. The Act says:
104 Restrictions on payment of expenses incurred in Tribunal proceedings(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
You were successful. The Act doesn’t say anything about being partially successful. I would email the strata manager and ask them if they really want to go round again and charge another set of costs to the owners.
If he doesn’t amend the motion, I would go to the meeting and ask the owners if they really want the strata manager to play double or quits with their money, given that you didn’t actually lose on the other issues, you withdrew them as a courtesy.
One of those “Do ya feel lucky, punk?” moments for the manager.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
When the superfluous issues were dropped the three issues remaining on foot became the entirety of the case. The effect of dropping the superfluous points of claim is the same as if they had never existed.
TrulEConcerned was entirely successful. A special levy addressed to TrulEConcerned would lack a statutory basis.
At the current rate it seems the Strata Managing Agent is likely chalking up more additional fees than the initial amount claimed for spectating at NCAT?
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