Just to be clear – a mediation is not a ruling or an adjudication. It is an attempt to reach agreement between two parties on a way forward that avoids further strife or litigation.
My first question is, if the committee has agreed to fix the bathroom, what exactly are you seeking from the mediation?
The committee can send anyone they want … or no one. However, as the litigant, you must attend as you require an attempt at mediation as a prerequisite to taking the case to NCAT.
Yes you can take along anyone you want for support but expect to be asked to speak for yourself, if at all possible.
Things to bear in mind are that if you reach an agreement at the mediation, you want something in writing from them that includes a deadline. If they fil to abide by that, you can then pursue the issue through NCAT.
By the way, for anyone else who has a problem with their committee delaying fixing common property, the committee’s decision not to fix the membrane because it wasn’t an emergency was entirely bogus. An owners corporation as represented by the strata committee has a responsibility to fix common property and they don’t get to choose whether or not there’s a good enough reason for doing it.
In a similar situation, I wouldn’t get into arguments about who got quotes for this or that or any of the rest of it.
I would just say over and over until they were sick of hearing it: “Under Section 106 of the Strata Schemes Management Act 2015, an owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. Also an owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.”
Just for occasional variety, I might throw in that in the 2006 decision of Seiwa Australia Pty Ltd v Owners Strata Plan 35042, His Honour Justice Brereton explained:“That duty is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair.”
For further ammunition, consider quoting this, which is basic strata law but is summarised elegantly here in the Turnbull Bowles lawyers website:
When it comes to undertaking maintenance and repairs, the Owners Corporation must consider the sufficiency of the intended scope of work and whether it will suffice to meet the duty which the legislation imposes. The Owners Corporation must focus on the key phrases “maintain and keep” in respect of the common property and “renew and replace” in respect of any fixtures or fittings comprised in the common property.
In addition to the decision in Seiwa referred to above, there is ample case law to support the proposition that the Owners Corporation cannot adopt a watered down approach or adopt a lesser scope of works, if to do so, would mean that the common property is not being properly maintained and kept in a state of good and serviceable repair. The Owners Corporation must replace like with like.