The Forum: Give bogus, bullying by-laws the boot

There’s a nasty by-law floating around various strata schemes these days – I say nasty because whatever its intent was, it’s having the effect of discouraging owners from challenging their strata committees, regardless of the validity of their cases.

One version of this that I’ve seen was concocted by an otherwise responsible strata legal firm, and I’ve written about that before.

Another has been sighted recently by Flatchatter Larry. Basically, these by-laws say that if you take your committee to the state tribunal and lose the case, you will be liable for the strata scheme’s legal costs.

There are others, all with the same apparent intention of discouraging “vexatious” owners and hobby litigators from pestering their strata managers and committees with spurious complaints.

Now you can see the thinking here.  If you have time on your hands and the spare change in your pocket to launch cases at the Tribunal you can have a whale of a time at your neighbours’ collective expense, for as little as $27.

Your neighbours, on the other hand might feel compelled to hire a lawyer (probably the one who drafted the by-law) at 100 times that cost, probably a lot more.

But, as with all scatter-gun approaches, they also have unintended effects (or maybe intended) of intimidating into silence owners and tenants with valid complaints.

And there are a couple of reasons you should not be deterred by any such by-law and, in fact, should challenge it, regardless of whether or not you intend to drag your committee to NCAT. 

First of all, by-laws are invalid if they contravene superior laws. Only NCAT can award costs in the cases it hears and that is far from automatic. Loser pays is not a principle of strata law.

If you don’t believe me, have a read of this fact sheet from Kerin Benson lawyers.  It says this:

The [general rule that the] unsuccessful party generally pays at least part of the costs of the successful party … does not apply in the NSW Civil and Administrative Tribunal (NCAT). In NCAT the starting point in relation to costs is that each party is to bear their own costs.

Now, the NCAT regulations already take into account vexatious litigations, citing among its “special circumstances” under which costs may be awarded, that the matter had limited or no possibility of success and where the claim was “weak, misconceived and bound to fail”.

I’m not saying that this should be your trigger to pursue flimsy cases at NCAT – far from it – but if you believe have a valid case, don’t be deterred by bogus bullying by-laws. You can read Larry’s question HERE.

Elsewhere in the Forum:

• Can the committee send noisy tradies on to the common property roof above my flat without due notice?  That’s HERE.
• A neighbour want to lop a tree growing from my property over his.  Who pays?  That’s HERE.
• How do we divide the space for solar panels so everyone gets a fair share?  That’s HERE.
• Why we need to change strata law to prevent bully developers blocking reasonable improvements out of spite.  That’s HERE.
• Who pays when concrete cancer has spread in a neglected unit?  That’s HERE.
• How can I persuade my neighbours to use the proper waste bins?  That’s HERE.

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