[Ancestor]

I am sorry to have to observe that my genuine questions have been met with condescension and now irrelevant suggestions of “conspiracy.”  I am perfectly capable of reading the act and the many explanations of the amendments which legal firms have put on the internet. I have also read the speeches in the debate  in the House of Assembly. 

What I wanted to know is just how much protection could have been gained by lodging a building claim by Jan 15 IF the building was already out of its warranty period, or close to that point. Many owners corporations would have served lists of defects on their developers since their strata was registered. In many of these cases OCs and developers are working their way through the list, co-operatively. The claims lodged by Jan 15 are in a different category – formal legal notices served on developers. In some cases to my knowledge this has ruptured good working relations between the parties which now have to communicate and negotiate everything through solicitors. 

I pointed out that I could not find any statements – official or otherwise – made when the amendments were enacted, which advised stratas to lodge claims by Jan 15. It did seem to have been a well-kept secret. Just how many strata managers did advise their clients to lodge claims? How many took the advice?

I am a lot owner; I resent the lecture in your final paragraph and the insinuation that I am some pawn of developers. I suppose it was easier to sneer than to understand and answer my points.

[Ancestor]

Thanks – I understand that. But I don’t see how lodging a claim listing the still-existing defects can entitle a strata to any greater benefits than it was entitled to previously, if for example the building was five, six or more years old. If it was out, or almost out of warranty under the old system it was always open to the owners corporation to institute legal action against the builder or developer for defects not rectified. 

What seems to have happened is that the rush of claims has now been bogged down in the legal process – directions hearings, adjournments, hearing dates months ahead and in the meantime cessation of any defect work going on. It has always been a tough decision between relying on the good offices of a developer to make good defects, and seeking certainty by instituting legal action that would invariably alienate the developer. It is not clear to me that these actions have provided any greater certainty. And the legal costs don’t stop at the $1000 for lodging the claim!

[Ancestor]

Doesn’t sound very good advice to me – unless the officers of the Owners Corporation wanted to end up before a magistrate.

In NSW it is illegal to take photographs of private property without the owner’s permission. It amounts to trespass. I encountered the situation when I had to take photographs of a garden that was common property, but within an owner’s lot. Police warned me to be careful not to frame the photo to include any of the owner’s property.

I believe the same thing would apply in other states, and using a drone to look in on an owner’s property would be a) illegal and subject to penalty if the owner complained; and b) inadmissible as evidence in the case about the garden in question – because it was obtained illegally. 

[Ancestor]

dnighttime:

In response to your question of December 5 re appeals to the Tribunal from a decision by an Adjudicator:  I have recently been through this process and would make a couple of points that may assist you. 

In constructing your appeal you will have first of all to set out the grounds for your appeal. This is not as simple as it sounds; it is not sufficient to say that you don’t agree with the Adjudicator’s decision. You have to credibly submit where you think he erred, and why your case should be re-opened.

I have to warn you that you have to be very careful here, because much will depend on who you get as a Tribunal Member to hear your appeal. There are two schools of thought in the Tribunal: one contends that there are only limited avenues for appeal, the other argues that it is permissible to introduce new material. There are decisions of the Tribunal which support both sides, and both quote and interpret a couple of Supreme Court decisions differently.

In my case, I was fortunate to get a Senior Member who believed in the right to open up the whole matter, and ordered that my appeal be heard de novo, that is from the beginning, all over again with no restriction on the review of the Adjudicator’s decisions, reasons or comments. At the final hearing I again won a sympathetic Senior Member who clearly stated where she stood in the argument (among Tribunal members).

So, my conclusion from this is to treat with some scepticism the advice from your friend that you have a good case and should be able to run it yourself. It’s a toss of the coin who you get in the Tribunal, and some members can be absolute sticklers on the law. Whatever you’ve been told, it’s not a place for amateurs, unless it’s not critical and doesn’t matter, so you can have the fun of the experience. This is not your situation, so I would strongly advise engaging a competent strata solicitor to prepare your appeal documents and explain them to you. If you want to save money and take a risk, by all means appear yourself, but be prepared to be asked questions to which you don’t know the answers. (Do you understand all about Directions Hearings, for example?)

Hope this helps. 

[Ancestor]

With all respect, I think you and the CTTT fact sheet are both wrong. As I pointed out, s.68 of the Act provides for re-hearings. That of course, is subject to restrictions imposed by the Regulations. They are set out in Clause  25 as follows:

25 Excluded applications for rehearings 

(1) For the purposes of section 68 (13) (a) of the Act, a person cannot make an application under section 68 of the Act for a rehearing of completed proceedings if the amount claimed or disputed under the completed proceedings is more than $30,000.

(2) For the purposes of section 68 (14) of the Act, an application for a rehearing cannot be made under section 68 of the Act in relation to proceedings in the Residential Parks Division, Retirement Villages Division, Tenancy Division or Social Housing Division in respect of which an order for the termination of a tenancy or residency has been made if a warrant of possession has been executed in relation to that order.

I do not see the Strata and Community Schemes Division on that list. You do need a lawyer – obviously the advices on this blog are not a reliable guide.

[Ancestor]

dnighttime:

First, please name and shame the Tribunal member responsible for your decision. There are no privacy provisions involved, and the inconsistency in Tribunal orders suggests that the one thing we as owners can do in these circumstances is remove the veil of anonymity behind which members hide. This is particularly important as precedent plays no part in CTTT decisions – members are not bound by decisions of other members, even Senior members!

Second, there seems to me to be a “Portia” loophole which you may be able to exploit. (Remember the Merchant of Venice – Shylock could take his pound of flesh but not a drop of blood?) If the acoustic test as accepted by the Tribunal indicated that the standard was complied with as measured with the rug, but not elsewhere, then it could be argued that the entire floor needs to be covered with equivalent rug or carpet to satisfy the original order.

Thirdly, before you hike off to the Supreme Court, I think you might well qualify for a review of the case in the Tribunal itself. See s.68 of the CTTT Act:

68 Rehearings by Tribunal

(1) A party in any proceedings that have been heard and determined by the Tribunal (“the completed proceedings” ) may, in the manner and within the time prescribed by the regulations, apply to the Chairperson to have the completed proceedings reheard by the Tribunal.

(2) The grounds on which such an application may be made are that the applicant may have suffered a substantial injustice because:

(a) the decision of the Tribunal in the completed proceedings was not fair and equitable, or

(b) the decision of the Tribunal was against the weight of evidence, or

(c) significant new evidence has arisen (being evidence that was not reasonably available at the time the completed proceedings were being heard).

Find it here:

https://www.austlii.edu.au/au/legis/nsw/consol_act/ctatta2001361/

But as already advised, you need legal skills to avoid being browbeaten by the Tribunal. The problem is that the CTTT dispenses law, not justice, and the interpretation of the law in any case is whimsical.

Hope this helps

 

 

 

 

[Ancestor]

There seems to be something missing in this story. How are wholesale installers of fibre optical cable equipment able to demand access to install their terminals in buildings in areas well ahead of the NBN rollout? The new interactive map on the NBN website makes clear for example, that the NBN cabling has not reached Chatswood (Sydney lower North Shore) and there is no timetable for it to do so. The only activity listed is for the new high-rise ERA tower block, where installation of the cable distribution within a brand new building equates to the cabling of greenfield housing developments. That is sensible. But the ERA cabling will not be connected to an NBN high speed broadband cable, as that backbone work has not yet reached the area!

My understanding is that the new government’s review of the NBN scheme is not yet complete; its policy statements have indicated that it favours fibre to the node, not to the premises. This, I would have thought, would be a relief to owners’ corporations, giving them time to consider whether and when to make the final connection to the building, and how far the internal cabling would go. Until the new policy, and its costings are published, nobody can know for certain where the NBN cable will stop.

Does this mean that wholesalers such as First Path are operating under the previous government’s regulations and its Act? How come they are working so far ahead of the NBN cabling backbone, and now, the policy of the new government? Are they “kicking down doors” as claimed, bullying owners corporations and building managers to do work which may not be wanted, and may not be legal when the new policies are announced? (Why are they attacking strata units and not private homes?) If these companies are taking advantage of the policy vacuum, every device should be used to frustrate their intentions – at least until the government announces its plans and amends the NBN Act.

 

[Ancestor]

Jimmy T’s comment is a very sensible and sound summation. What the discussion has opened up is the difference between the by-law complained of, and the standard model bylaw 6 of Schedule 1. As it happens, the reference to “common property” is absent also from bylaw 7.1 at the heart of the Franks case in the Supreme Court which I quoted, and might have precedence value in any challenge to the adjudicator’s decision.

The adjudicator determined that he did not have “declaratory powers” to grant any of the orders sought in relation to the NTC for alleged breach of a bylaw. However in the Franks case, the Adjudicator had no problem in making an order that pursuant to s.138 “the respondent shall not use language or behave in a way that is reasonably likely to offend or embarrass another owner or occupant of the strata scheme or their visitors.”

So, one adjudicator declined to use s.138 to resolve a dispute; another made an order to comply with exactly the same bylaw terminology. Question – Is the essential difference that one was asked to resolve a dispute at the initiative of an owner on whom a NTC had been issued, while the other was responding to a complaint by the owners corporation, alleging that the owner had breached the bylaw? (There was no mention in the Supreme Court report of the case that a NTC had been issued before the OC applied to the adjudicator for orders). Is the difference significant?

When is a dispute not a dispute? Finally, is this really a question of law, or the personality of the adjudicator?

[Ancestor]

Hi. Thanks to all for their comments. First:

The relevant by-law is similar to the standard and says merely: “An owner and occupier must not use language or behave in a way that might reasonably offend or embarrass another owner occupier or their invitees.”

As explained, this was seized upon (under legal advice) as the only way of silencing a critic. The problem was that it was stretching a long bow. It’s reasonable to hypothesise that the by-law was meant to curb obscene, fillthy and grossly insulting language, which might be offensive to the target and embarrassing to people who overhead such remarks. Merely to allege in an email that an executive committee falsely claimed a democratic justification for its actions by producing proxies obtained from “indifferent, unsuspecting or misinformed” owners does not meet the test implied in the bylaw.

54% of the owners in that strata are of immigrant ethnic background. The vast bulk of them take no interest in strata affairs. Many have limited English and culturally, shrink from robust disagreement and debate. In the event, it was established that some had been given false information about the subject under discussion, and various devices (including pressure) were used to obtain their proxies.

It’s all very well to say a Notice to Comply has no force until activated by further action. The problem for the individual is that the s.45 notice stands on the strata record as a judgement, without right of reply or challenge. The action in adjudication was an attempt to clear his name, seeking a finding that the words used did not come within the meaning of the bylaw. It was a scurrilous use of a legalism to pull the stunt of “declaratory power” as an excuse for not digging down to solve the dispute.

Now compare that with the situation in NSWSC 341: Franks v Consumer, Trader & Tenancy Tribunal (2013);

The Owners Corporation of SP70672 took action in the CTTT under s.138 against the owner Phillip Franks for breaching exactly the same by-law: “Using language or behave in a way that is reasonably likely to offend or embarrass another owner or occupier or their visitors.”

It is not necessary to go into the reasons why it ended in the Supreme Court, but the offences alleged included a long string of complaints by various owners over time, including physical threats and bullying. The owner repeated the action after being served with a notice to comply with the bylaw.

The difference was that the adjudicator had before him a complaint from the OC to act against an owner, and therefore he had no difficulty at all in investigating in detail the complaint and making findings and orders.

My point is simply, that claiming not to be able to give “declaratory relief” is a cop-out, a side-step to avoid having to get down into the details of the complaint, with the result that the dispute remains unresolved, and justice becomes a joke. While the CTTT Act and the SSMA pretend to operate at a layman level, with the right of personal approach to the Tribunal, the reality is that these vehicles operate on an essentially legalistic basis; an unrepresented individual is highly vulnerable and will be cut down smartly by an adjudicator or tribunal member. 

FWIW the owner has written to the OC as suggested, ignoring the notice. It’s even probably the issue will not re-appear, but it is completely cynical  that the adjudicator would write that the evidence put forward in great detail in support of the complaint could well be used in defence should the OC take action to enforce the order to comply. Since the issue is really one of trying to suppress criticism and dissent – but not in language that is either offensive or embarrassing – who knows where it will end?

 

 

 

[Ancestor]

We have just got the authoritative interpretation from the LPI (Land and Property Information Service) which has all plans and by-laws on file. Since the fan and its ducting system are in the ceiling space (i.e. between the suspended ceiling and the slab forming the floor above) they are not in the air space of the Lot and therefore are Common Property. This is notwithstanding the fact they serve only the one apartment. Section 52(3) of the Strata Titles Management Act 1996 provides that an Owners Corporation may, by special resolution, decide to exclude such equipment from the Common Property. The whole matter turns on the fact that, put simply, everything that is not within the lot is Common Property unless the by-laws designate it as the owner’s responsibility. In our case, this is what happens with the air conditioning – specifically noted in the by-laws as the owner’s responsibility.

[Author]

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