The strata committee has obligations and they can be compelled to fulfil them.
But how are they actually “compelled”?
It depends what you mean by compelled. Nobody is going to come and hold a gun to their heads. But if orders to fulfil a function are issued by NCAT and the committee ignores them, they are straying into murky waters, at the deep end of which lies the appointment of a statutory manager. That means the removal of all owners corp powers from owners and their committee and a world of pain for two or more years.
Has a Committee itself ever been individually fined or otherwise penalised by a Tribunal or a Court?
Penalties would be against the whole owners corp, not just the committe or individual members. The committee represents the owners, for better or worse. And those penalties include the option for the tribunal to sack individual members, the whole committee or remove officer bearers from their roles on the committee.
If so, I think I’ll be resigning from all the Committees that I’m a member of and my Chair role too. It’s all done voluntarily with my best intentions, due care and diligence. And that seems to be the limit of what I am actually compelled to do.
Are you saying that you wouldn’t enforce by-law breaches if it didn’t suit you? In that case, maybe you should consider your role on the committee.
Owners elect committees to represent them and part of that is to run the building according to strata law and by-laws. Notices to comply don’t even require mediation. It’s a simple process. I don’t see what the problem is. If the by-laws are wrong, change them at a general meeting. Otherwise, surely you should be expected to do what you were elected to do.
Having a statutory duty is all very well but failing to actually give an OC/BC or a Committee any authority to actually enforce that statutory duty makes it a moot point. Issue a breach notice? That’s just a warning. Not much enforcement authority there.
In NSW, a Notice to Comply is as much of a threat as it is a warning. NTCs basically say “stop breaching by-law X or you will be subject to fines”.
There is a recent QLD case where the Adjudicator made a comment on this …
But we are specifically talking about the NSW Act and just because the Qld Act specifies that bodies corporate have an obligation to enforce by-laws, and NSW doesn’t spell that out, it doesn’t mean the obligation doesn’t exist.
See my previous comment about the Second Reading of the Act. It’s crystal clear that the obligation exists and there are remedies should committees choose not to fulfil their responsibilities.
Regardless, if an OC/BC Committee doesn’t attempt enforce its by-laws/rules or actual laws what’s going to happen to the Committee? Not much in reality. So it’s not really “compelled”.
Perhaps that is the case in Queensland but in NSW if, at any point in a dispute an NCAT member feels a strata committee and its scheme have become dysfunctional, the Member can, by their own volition and not requiring an application by an owner, appoint a strata manager to take the reins. Trust me, that is an outcome no one enjoys. Often, that includes the strata manager, who can become the focus of owners’ anger and frustrations.
Also, judging from the discussion we had on the recent David Bannerman “lawyer in the hotseat” webinar, when schemes are showing signs of significant dysfunction, rather than pick and choose who’s at fault, the Member will just pull the plug and appoint a strata manager.
I’m pretty sure a refusal to obey an order to enforce a by-law would be more than enough of a trigger. If that doesn’t create a sense of compulsion among committee members, then they probably deserve to be sacked.