Some NCAT level case law that supports the idea the OC must pursue by-law enforcement.
(redacted)
Paragraph
106. The circumstances in which the management structure may not be functioning or functioning satisfactorily include where the relevant level of management;
– Fails to exercise power or make a decision to prevent a contravention by lot owners and occupiers of their obligations under the Act, including breaches of by-laws
107. Section 12 of the Act provides that an Owners Corporation has functions conferred or imposed on it by the Act. Relevant functions include:
– Serving notices and taking action in respect of breaches of by-laws
Luong v Owners Corporation SP 87671 and Telmet Ventures Pty Ltd [2015] NSWCATCD 105
NCAT Member Vrabac, who is actually one of the better strata matters Members, without qualification, puts forward, in paragraph 107, the idea by-laws must be, as a function, enforced.
Yet where do we find this alleged function?
In paragraphs 106 and 107 Member Vrabac, in the full text, outlines several functions and I believe all can be expressly found in the Act except the alleged by-law enforcement function.
The problem with Member Vrabac’s work here is that it does consider that s 146 (s 45 at the time) is discretionary. That is where the power to begin enforcement lies and the power is without question discretionary due to the language of the section.