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In an NCAT case where the respondent is the body corporate but there have been no strata elections in the decades-long history of the scheme, who can represent the respondent?
The majority family owners will put themselves forward, having represented themselves as office holders to lawyers, the government, the bank and the subsequent owners of the minority unit for over 20 years. However they can’t rationally claim legitimacy due to numbers due to voting rights giving the minority owner the casting vote (Schedule 1, Clause 14(2)–(3) and ss 5(2A), 32(2) of the SSMA Act).Neither can they rely on s38 or any other section to claim authority, as they have never been elections. They also have a conflict of interest due to demonstrated wide-spread mismanagement of the scheme.
The purported office holders hold the password to the strata email and the key to the strata letterbox. There is no other known contact to provide to NCAT for the respondent. NCAT assumes that any correspondence coming from this email address is from a valid office holder.
I have already tried unsuccessfully for a professional strata manager to represent the respondent just for the case. Acknowledging that other owners have a right to speak as interested parties, what are the options here for valid representation of the respondent which will be fair to the respondent?
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There isn’t enough in the available material to determine who NCAT would accept as authorised to represent the owners corporation in your case. Longstanding claims to office, control of the scheme’s email or letterbox, and the voting and conflict issues you describe do not resolve that question. NSW guidance says the owners corporation elects a strata committee at each AGM and that office-bearers are chosen from committee members.
Who’s who in strata | NSW Government
Because the representation is disputed in a live NCAT case, seek urgent advice from a NSW strata lawyer. Ask them about notifying NCAT of the lack of election records and competing claims of authority, and requesting directions on representation. Also ask whether a properly convened meeting could elect a committee and appoint an independent representative or strata manager. NSW guidance notes that NCAT may appoint a compulsory strata manager when an owners corporation is not carrying out its duties properly, but whether that option fits your situation requires legal advice.
NSW Government: who’s who in strata · Appointing strata managers and other workers.
General information only, not legal