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I put in an application with Fair Trading to discuss illegal parking in my unit block and the breaking of our By Law. The Owners Corporation has declined my application for mediation.
How should, and can, this happen please wise ones? Should there be a meeting of Owners etc etc?
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It doesn’t really matter if they attend mediation not. Mediation agreements aren’t binding even if signed by the strata manager, which happened to me.
Even worse if you go to NCAT, which costs a fortune in lawyers, the adjudicators don’t necessarily have legal training. There’s also no law against an OC not allowing the quiet enjoyment of a property to a resident.
The law only mentions a resident not allowing quiet enjoyment, from memory. The entire system needs a complete overhaul.
At the moment if the member of an OC doesn’t like an owner they can made their life hell. TIME FOR CHANGE
… if you go to NCAT which costs a fortune in lawyers the adjudicators don’t necessarily have legal training.
Did your lawyers file for costs? They should have.
There’s also no law against an OC not allowing the quiet enjoyment of a property to a resident. The law only mentions a resident not allowing quiet enjoyment from memory.
There are double negatives in the above but Section 232 of the Act allows owners and residents to take action against the Owners Corp for failure to enforce the scheme’s by-laws. Have a look at sections 1(b) and (2) “Failure to Exercise a Function”.
According to Victor Dominello, whose policy people drafted the Act, the intention is that owners corps can be required to enforce their by-laws.
Even if you didn’t get your costs, I hope you have made sure that the Owners Corps raised a special levy (from which you were excluded), to cover their expenses charged in defending the action.
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It sounds as if someone’s parking in contravention of your by-laws. Are you trying to get the OC to enforce the by-laws? What was the specific topic you requested mediation on?
Ziggy shouldn’t really have started a new thread on this issue without referring to the previous posts. You can’t expect readers to remember every other discussion on this. Starting another thread is perilously close to double-dipping.
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…mediation agreements aren’t binding even if signed by the strata manager which happened to me…
In the ACT Tribunal at least (I expect other Tribunals operate similarly), if an agreement is reached during mediation/directions hearing, whatever is agreed is made into ‘consent orders’ so long as the parties agree and none of it would be actually illegal. The Tribunal member might privately think some aspect of the agreement is nuts but holds their tongue if all are happy to agree. Consent orders are proper orders of the Tribunal and must be complied with. If a party later goes back on the agreement, the recourse is to seek an enforcement order from the Magistrates Court. The Magistrates Court will order compliance and does not review the merits of the Tribunal’s orders.
… is there a process required by the Strata Committee to decline mediation?
Generally the secretary and/or strata manager will receive a notice from Fair Trading asking them if they are planning to attend the mediation. There is an expectation that they will respond one way or another.
Do they need to hold a meeting?
I don’t think they need to hold a formal meeting but they can.
Am I meant to be on that meeting?
If there is a formal meeting, with an agenda issued, you are entitled to be there. Otherwise it could just be a ring-around.
Are all the owners required to respond?
No, the committee represents the Owners Corp which represents the owners.
Is there any paper work required?
If you are talking about the response to the invitation to mediation, there would need to be an email or letter, even if it’s to say that mediation has been declined. I don’t know what Fair Trading does if they get no response. But all you have to do is prove that you attempted mediation then (and only then) you can move on to seeking orders at NCAT.
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The strata committee needs to hold a meeting, and it can be a “paper meeting”, in order to appoint its nominees to attend the mediation on the owners corporation’s behalf, and give those nominees the authority to settle the matter. The secretary or strata managing agent responds to the mediation invitation from Fair Trading with this information, by the due date given, otherwise it is deemed non attendance by the owners corporation. The response could also be that the owners corporation wishes to decline the invitation.
Fair Trading issues a mediation outcomes letter after mediation which is unsuccessful or partially successful, to the mediation applicant to then include in their application to NCAT. There is a similar letter for when mediation does not take place due to absence of a party. These letters are the necessary evidence that mediation has been attempted.
There you go. I searched high and low for the info “Just Asking” provided above but couldn’t find it anywhere. Just shows how hard it is for ordinary strata residents and, dare I say it, how valuable this Forum and the input from Flatchatters can be.
The one thing I would add is that if the committee ignores the invitation and lets it run out, then no meeting has taken place but the invitation has been effectively declined.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.