@newlsie said:
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* I have NCAT orders brought down in January 2017 to fix the leaks immediately. The SC have not complied.* Fair Trading won’t touch it because I have NCAT orders.
* NCAT say they cannot force the work to be done. I can spend $5k with my lawyer and the OC will get fined however the Government keeps the money. That does not get my leaks fixed because the SC don’t care.
* Where to from here. …
You seem pessimistic about enforcement orders. In my experience, which was only once, and I am not a lawyer, it was not difficult. Sure, there is some extra bother. I think you just need to find out which is the right area of the court system to go to for enforcement orders. I am only familiar with the ACT where the Magistrates Court makes enforcement orders for any earlier orders of either the Tribunal or the Magistrates Court that have not been complied with.
If you just want the leaks fixed, you don’t have to ask for the fine to be applied; just ask for a court order that the Tribunal order be complied with by some new date. The SC would be extremely foolish to continue to fail to comply. You ask the Magistrate what would happen if the SC continue to fail to comply with the Tribunal order and the Court’s order. The Magistrate will most likely explain it very clearly and sternly to the SC’s representative(s). You can also apply for an order that someone else be authorised to make the repair if the OC does not do it. That makes sure someone else is covered legally if they do the work if the OC still fails to do it. You can also have an order that slates all the extra costs back to the OC. This should concentrate the minds of the SC.
In the ACT, and most likely in NSW, there will be Court ‘Procedure Rules’ which describe what sorts of orders can be made by the Court. In our matter, the ACT Tribunal wrote: “If the respondent fails to comply with the ACAT order then the applicant can take enforcement action in the ACT Magistrates Court pursuant to Part 2.18 of the Court Procedure Rules 2006, and in particular rule 2442. In the Tribunal’s view the Magistrates Court would be able to make the kind of orders being sought by the applicant in relation to compliance with the ACAT order.”
From the ACT Court Rules quoted below a key bit is that “if the original order is an order to do an act, the court may appoint someone else to do the act; and order the person liable under the original order to pay the costs and expenses caused by the failure to do the act.” So, the orders you seek could be that 1) the OC makes the repairs as originally ordered by the Tribunal by some date considered reasonable by the Court and 2) that a strata manager be appointed and authorised to carry out the repairs if the OC has not complied by the date in order 1, and/or 3) any other order that the Court considers reasonable or necessary to have the leaks described in the original Tribunal order fixed.
Relevant sections from the ACT Court Procedure Rules follow. I suggest you look for the NSW equivalent:
2001 Enforcement orders generally
(1) To enforce an order (the original order) (but not an order for the payment of money into court), a person entitled to enforce the original order may obtain an enforcement order from the court.
Note Orderis defined in the dictionary to include judgment (see also def made).
(2) An enforcement order may contain any order directed to enforcing the original order.
(3) Without limiting subrule (2), an enforcement order includes the following orders:
(a) a seizure and sale order (see division 2.18.5);
(b) a debt redirection order (see division 2.18.6);
(c) a regular redirection order (see division 2.18.7);
(d) an earnings redirection order (see division 2.18.8);
(e) a charging order (see division 2.18.9);
(f) an order under division 2.18.10 relating to amounts or securities in court;
(g) an order under division 2.18.11 appointing a receiver;
(h) an order for delivery of possession of land (see division 2.18.13);
(i) an order for seizure and delivery of goods (see division 2.18.14);
(j) an order for seizure and detention of property (see division 2.18.15);
(k) an order issuing an arrest warrant or an arrest and detention warrant under division 2.18.16 (Contempt).
(4) An enforcement order may contain 2 or more orders directed to enforcing the original order and may be made to enforce an original order that is a money order and a non-money order.
(5) Without limiting rule 6901 (Orders may be made on conditions), an enforcement order may be made on conditions about the payment of, or giving security for, the estimated expenses of an enforcement officer in enforcing the order.
2442 Enforcement—orders to do or not do an act
(1) This rule applies to an order (the original order) if—
(a) the order is a non-money order that requires a person—
(i) to do an act within a stated time; or
(ii) not to do an act; and
(b) the person contravenes the order.
(2) The original order may be enforced in 1 or more of the following ways:
(a) punishment for contempt of the person liable under the original order;
Note For provisions about contempt, see div 2.18.16.
(b) an order for seizure and detention of property against the person liable under the original order;
Note For provisions about orders for seizure and detention of property, see div 2.18.15.
(c) if the person liable under the original order is a corporation—without limiting paragraphs (a) and (b), the following:
(i) punishment for contempt of any senior officer of the corporation;
(ii) an order for seizure and detention of property against the corporation.
(3) Subrule (2) is subject to rule 2446 (Enforcement by contempt or seizing and detaining property—preconditions).
(4) Also, if the original order is an order to do an act, the court may—
(a) appoint someone else to do the act; and
(b) order the person liable under the original order to pay the costs and expenses caused by the failure to do the act.
(5) Subrule (4) does not affect the court’s power to—
(a) appoint a person to execute a document by order of the court; or
(b) punish for contempt