Investor 13, this is indeed a complex case.
I have some experience in going to NCAT against dictatorial opaque committees and want to share three points that may inform your decision making.
1. Kaindub wrote
Even if a party has a good case, if the case is argued poorly in a court, the chances of a positive decision are diminished.
This is very true. Irrespective of whether the NCAT member hearing the case is generally predisposed to an OC or to an individual owner, or to an applicant or to a respondent, IMHO one attribute is common to them all: they want the participants to the case to be quick, concise and on-point. There are no do-overs (at a later date) if you feel your presentation was poor.
2. JimmyT wrote
Let’s look at what section 104 of the Act says:
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.
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. In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.
So there you have it. The owners corp must raise a special levy to pay its legal expenses and you must be excluded from that levy.
All well as good as far as it goes, but in my experience it doesn’t go anywhere, because s. 104 doesn’t spell out (a) what time line the OC has to raise the special levy and (b) what happens if it pays its expenses and doesn’t raise the levy.
I won a case in March 2022 against an OC who paid for an agent to support them at the hearing.The committee ran their defence, the agent was there seemingly to bolster their position. In 3 hrs she answered 3 questions she was asked by the Tribunal.
Prior to the hearing, there was no general or committee meeting of the OC to vote for her to attend nor any meeting to approve her fat fee. The day of the hearing she debited the trust a/c with her fee.
Fuming, I complained to the agent. Told the agent about s. 104 which either she did not know of (and that speaks volumes about some of those individuals who so-called “manage” stratas) or she and the committee had no interest in excluding me from contributing.
Long story short, some time after I told the agent to educate herself by speaking to NSW FT,the agent informed me the committee agreed that I should be excluded from contributing to the levy and they will raise this issue at the AGM this Dec. This is NINE months after I (as part of the OC) was debited.
I called NSW FT and was told that the committee and agent are extraordinarily unreasonable and was recommended to take the matter to Mediation and prepare for a hearing at NCAT, because whatever the committee/OC/agent say at Mediation is not worth a hill of beans as it is non-binding. In my experience, at Mediation, an OC says what they want to say in order to buy time. That is, they often agree to what is asked by an individual owner in order to appear fair, with zilch inclination to abide by their agreement.
In April I applied for Mediation. It will be heard at the end of July. Quite a backlog at FT I hear.
3. Some have suggested you may need a lawyer.
You must first off calculate the cost of the lawyer versus your expected gain in dollars. Even if you lose the case, you are still up for the lawyer’s fee and if you win the case, you may still be out of pocket.
In one case I took a neighbour to NCAT and the local court for driving my tenants away with his noise (he renovated his unit, made an incredible racket over months and made living in my unit by the tenants unbearable).
Given I lost at NCAT and the local court, either I was not on-point or those who heard the case saw it differently to me.
After the case, while still at the local court, I was approached by a gentleman who introduced himself as a barrister. He noted that while I lost, he is confident he would win at a higher court (Supreme I think he mentioned) if he represented me as he did not agree that the court was right in its interpretation of the law.
But the penny dropped when it was clear that notwithstanding the tidy sum I was seeking may well be awarded in my favour, after paying his handsome fees, I would be in the red again.
So yes, lawyers may help you, but only if it’s cost effective.