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JimmyT said:
CBF's comments about volunteers are valid but if those voluteers don't have time, aren't interested or are so defensive that they won't listen, then they shouldn't be on the committee. They are supposed to be bridges with owners, not roadblocks.
More commonly than otherwise, members of Owners Corporations are laypeople. They, just as the very few who would be lawyers, must provide proper management of a strata scheme.” G Durie; Senior Member CTTT. Bushby v Owners Corporation SP 64939 (Strata & Community Schemes) [2009] NSWCTTT 70 (25 February 2009)
Being a volunteer is not an excuse anymore. Senior employees at CTTT have an expectation of volunteers; the same expectation they have of professionals.
It sounds like a small SP so it is possible to have an EC meeting in less than a week. Consider talking to some people on the EC immediately and let them know you are prepared to put the matter before CTTT if the OC does not give you some sort of acceptable timetable for the required work.
If the EC do not want to be reasonable about the matter then
perhaps consideration should be given to s170 of the Act – seek an interim order and quote the Seiwa case. Apply to have the OC ordered to take “immediate” action.Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 (6 November 2006)
If you do want to apply for an immediate order you will also need to apply for mediation at the same time and you will also need to submit a substantive application (application for an Adjudicators Order) at the same time. It will cost $72 x 3 if you want to press the matter.
There is nothing pro-active about not fixing a leaking (common property) roof and if the OCs' apathy is leading to continuing damage and/or interference with use of lot then perhaps it is time to give the OC some hurry up.
Sometimes an owner has to be firm and if that means going outside the OC to get a solution to a problem then that is what the Act provides for.
It would also be worthwhile to seek a quote and put a motion on the next AGM agenda to appoint a new manager- just to keep the current manager from getting too complacent.
My Uncle Jamal said:
The CTTT *is* an affordable dispute resolution process. If the person taking the action is a pensioner, the entire process from mediation application to appeal decision costs only $15 ($5 mediation application, $5 adjudicator application, $5 appeal application).
To be awarded legal costs, the onus is on the Owners Corporation (as Respondent) to convince the Tribunal to award them, and the onus is high. Costs are awarded by the Tribunal *only* in limited circumstances.
The circumstances are when:-
(a) the application or appeal is frivolous, vexatious, misconceived or lacking in substance, or
(b) a decision in favour of the applicant or appellant is not within the jurisdiction of the Tribunal.
(Section 192 Strata Schemes Managing Act).
It's not about whether you win or lose. It's about whether the appeal was nonsensical, and few appeals are, even when they lose. So provided this appeal has some substance to it and the matter's within the Tribunal's jurisdiction, the Tribunal will not order the Appellant to pay the Respondent's legal costs.
Even if costs are awarded, the Respondent can't just ask for any sum it likes. It must be reasonable. The Tribunal has in the past ordered only a portion of the Respondent's costs to be paid when the costs seem unreasonably high, especially when it's not a complex matter (in which case only about an hour's worth of legal fees is reasonable).
I have, at times, paid the $5 fee and still feel i am getting ripped-off for the service I receive.
I was involved in a matter where costs of almost $7k were awarded without question. The matter related to whether or not an SP had registered a by-law as was ordered by an Adjudicator.
The Member at the Tribunal hearing openly stated the order in question was poorly worded but still said the matter should never have been before the Tribunal … a little contradictory.
Both parties believed the same wrong interpretation of the Adjudicators order for months until the OC realized its mistaken interpretation and registered the order via s209.
The OC then decided to let the matter run and try to get costs just to be spiteful.
The costs were exclusively the time the OCs solicitor claimed she spent on the matter. It was an insane amount for what was a trivial matter that was only before the Member because the Adjudicators' order was poorly written.
The OC had secretly accumulated almost $7k in expenses. There was nothing in EC minutes about the matter and it was later revealed that half the EC (4 of 9) had quit because the other half refused to show the Treasurer the solicitors fee agreement which turned out to be for only $2500.The whole experience makes me very reluctant to appeal anything given costs, outrageous costs, can be awarded even when a matter has some substance.
Billen Ben said:
If you believe there maybe a defect (64(1)) due to the unauthorized work then s65(2) should get you in the door to inspect for defects.
I should just clarify that when i say you i did not mean you personally; i mean one of the parties covered by the sections of the Act i refereed to ; i.e. the OC, the agent, employee / contractor.
As is implied in my post, and supported by Chris in a later post, you should try to get the OC to change its mind about having a look.Section 80D is governed by the Regulations.
Legal advise can be sought up to the amounts specified by the Regs without the need for a resolution at a general meeting; i.e. the EC can make the decision. Do not forget the power of veto over the EC given to owners by cl 11(2) of Sch 3 of the Act. If the owners do not want to spend the money then they can veto an EC decision if they have the numbers.
If the estimate exceeds the amount specified by the Regs, below, then you need an ordinary resolution from a general meeting for the spending.
SSMR 2010
15 Exemptions from need for approval for certain legal action(1) The seeking of legal advice, the provision of legal services or the taking of legal action is exempt from the operation of section 80D of the Act if the reasonably estimated cost of seeking the legal advice, having the legal services provided or taking the legal action would not exceed:
(a) an amount equal to the sum of $1,000 for each lot in the strata scheme concerned (excluding utility lots), or
(b) $12,500,
whichever is the lesser.
good luck with it.
I would suggest taking a copy of the post by easty in the Who pays for 'illegal' door? topic to your EC or agent. Things can come back to haunt an OC if it gets complacent. It might take several years for a situation to develop but unchecked alterations to the common property are a danger because they can have hidden costs if ignored. Good risk managment should see they do not go unchecked.
Just as the Seiwa case makes it clear an OC needs to be proactive in its approach to s62 of the Act; a proactive approach to other areas of the Act is also a best practice for the management of any SP.
wombat said:
I recall someone on this forum saying that the CTTT is not a “real” jurisdiction.
That was me. I say that because CTTT outcomes do not set precedent nor do they constitute persuasive argument. Each outcome is its own result.
There is one case by Senior Member Balding, now a Deputy Chair, where she quotes two different former cases that have great similarity to the one she was dealing with. She notes the decisions in the other matters are all over the place (my words, not hers). One of the two referenced cases gave the requested orders; the other dismissed the matter – a complete farce if s3(d) of the CTTT Act means anything.You might find it interesting that I was recently trying to have a Members performance reviewed under Schedule 3 of the CTTT Act but as the Member was acting as an Adjudicator the CTTT Chair felt the CTTT Act did not apply and as such declined to refer the complaint to the review panel.
Adjudicator are Adjudicators and not Members for the purpose of the Schedule 3 of the CTTT Act ?????
That is interesting because it should follow that s83 of the CTTT Act would also not apply when a Member is acting as an Adjudicator.You might like to look at s65(2)
(2) An owners corporation may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act.
and then refer to s64(1).
(1) An owners corporation may carry out such work as is necessary to rectify any of the following defects:
(a) any structural defect in any part of a building comprised in a lot that affects or is likely to affect the support or shelter provided by that lot for another lot in the building or the common property,
(b) any defect in any pipe, wire, cable or duct that provides, or through which passes, any water, sewage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil or other service (including telephone, radio or television services) within a lot.
If you believe there maybe a defect (64(1)) due to the unauthorized work then s65(2) should get you in the door to inspect for defects.
You should try to convince the OC it is in the OCs best interest to check things out because if issues occur in the future it may be much more difficult to seek a suitable remedy. The OC may get left holding the bag for expenses for a matter it can address here and now.
wombat said:
I would like to know the legislation that supports this. Can you help me with this Billen Ben?
Even a bank cheque needed to be cleared overnight before it hit the oc's bank account.Hi Wombat;
I hope it was in G F Bugden's strata book, if not then i would have to think about it some more. I do not have the book anymore but that rings a bell with me.From SCS 10/34078 page 3,
h. I do not consider that there is any real substance in the assertion that the Executive Committee is not able to propose motions. The reality is that the motions were proposed by lot owners who also were members of the Executive Committee. While the Committee does not have standing, its members who are lot owners, do. I assume that neither Ms Gilmour nor Mr Bonnano had a proxy to act for a lot owner. The minutes attached note that they had approval and consent from lot owners, and the attendance sheet records that each held a proxy from a lot owner, but I am unable to find the actual proxy in the materials provided.
The Act, Schedule 2 Clause 9 (1) provides:A person is not entitled to move a motion at a meeting or to nominate a candidate for election as a member of the executive committee unless the person is entitled to vote on the motion or at the election.
Unless there were a proxy, neither Ms Gilmour nor Mr Bonnano would be entitled to vote. Thus, neither could move a resolution.
G J Durie Strata Schemes Adjudicator 22 Oct. 2010
Neither Ms Gilmour or Mr Bonnano are owners. Both had motions on the AGM agenda.
It seems to me that the Adjudicator is saying if you have a proxy you are entitled to vote, move motions, nominate candidates and all the other goodies that come with being an actual owner.
I found the comment surprising coming from a Senior Member.You will notice the Adjudicator says “move a resolution”. Motions are moved and resolutions are the result of a passed motion. One does not move a resolution. I have trouble having any confidence in the organization (CTTT).
Hope this helps.
My Uncle Jamal said:
The eighth seat is cancelled, because it was not filled by a valid candidate (Reg 17(4)(a)). The executive committee is now finalised: it comprises seven seats by seven people.
17 (4) If the number of candidates:
(a) is the same as, or fewer than, the number of members of the executive committee decided on—those candidates are to be declared by the chairperson to be, and are taken to have been, elected as the executive committee
Why do you feel this means the eighth seat is cancelled. The Regs says nothing about seats being cancelled if the number of seats is more than the number of candidates.
The idea you put forward is that the maximum number of EC members is restricted to the number of candidates in cases where there are less candidates than 9.
What you imply is that if there are only X people nominated, the OC is restricted to passing a resolution that says the EC will be X members.
One would think that 17 (3 or 4) might say something about that if such was the case.I do not see a problem with having 7 candidates and then stating the EC will have 8 members. There is no contradiction or circumvention of the Act or Regs in doing so.
Regulation 17 of the SSMA is to elect an executive committee.
Clause 4 of Schedule 3 is about filling vacancies.bpositive said:
…………self-governing idealogy that simply does not work.
Absolutely nailed it. Little kingdom syndrome I call it. Autonomy has gone mad in my SP. There isn't management; just a power trip from the dominant clique. Twenty years of in fighting that will not end until all the owners are taken out of the management picture.
By-laws in my SP are enforced depending on who is breaking them; not an unusual story. CTTT does nothing when this sort of dysfunctional management occurs and lawlessness prevails. But if someone is on the wrong side of the fence with the self important narcissists who dominate the landscape within the strata plan then the by-laws are everything and woe be to any “wrong person” who breaks them.
You do not even have to break a by-law to get a notice to comply in my SP .. and if someone discovers a breach of by-law from a year and a half ago and it was the “wrong person” who breached the by-law then they can expect a notice to comply. Visitors to the SP even get sent notices to comply in my SP. It is just a clique on a power trip and it seems they are fully endorsed by CTTT who continue to turn a blind eye to much of what is going on.
Make all by-law enforceable, outlaw self management in large SPs, redefine what constitutes a large SPs if needed, get rid of CTTT and bring on the strata police; it is a start.
Michael Teys of Teys lawyers: No need to go anywhere near the CTTT on this one . The lot owner has breached the SSMA by leaving his lot in this state which is interfering with the way others use their lots and the common property. The OC has the power to enter the lot and do work ( ie clean the lot) and can send the bill to the owner concerned. I would recommend the entry be made in conjunction with the police and or health authorities but if they wimp out as they sometimes do in these cases , then go in anyway and take a solicitor with you to record and document the event. You do not need a CTTT order to make this happen. The most relevant sections of the Act are are 63 (4) and 65 (1) (a).
If one reads s 63(4) and then s117 1(a) it seems pretty clear the OC can waltz in a clean up this unfortunate situation.
Section 63(4) refers to; work …. in order to remedy a breach of a duty imposed by Chapter 4.
Section 117 is in Chapter 4;
s 117 states; (1) An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in such a manner or for such a purpose as to cause a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
We have a situation like it here. A few owners like to collect what most people consider junk. It doesn't take long for a 2 acre lot to end up looking like the local tip. It unsightly, a haven for vermin and repels buyers looking at purchasing.
I know of two schools of thought on that matter.
One is you get to vote because you have paid.The other is that because it is a cheque you are not actually deemed financial until the money is in the OCs bank account. The cheque needs to be banked, cleared and the funds transferred before the OC actually has your money. This train of thought is backed by various pieces of legislation.
The good news is that there are proposed changes on this issue but i believe it involves the person in arrears needing to banked the cheque 4 days prior to the meeting and if it does not appear in the OC account before the meeting it is still deemed to have been paid – that is the gist of what is proposed.
Bring cash – or stay financial, they are the best options.
I love your work wombat.
Cl 10(1) of Sch 2 stands no matter what a persons financial position but the plain English Act is not so plain English. I actually agree with wombat from just, face value, reading the Act that being not financial does not extinguish entitlement to vote; it just means the vote doesn't count BUT I also acknowledge that is not how it works. It is one of those areas where what it appears to say is not what it means in operation.
Being non financial means your not entitled to vote. It is legal consensus. If someone has a case law quote that would really help.
You will find it on page 303 of high profile strata solicitor Alex Ilkins book NSW Strata and Community Schemes Managment and the Law; 4th Edition. Not financial = no entitlement to vote unless it is a unanimous matter.It also means that a motion on an AGM agenda should not be put to the meeting if submitted by a non financial person. The motion will get on the agenda but it should not be put to the meeting.
It also means only votes that are potentially “countable” at a meeting count toward determining a quorum.
One of the sad things about legislation is that people cannot go back to the authors and ask; what did you mean?
I believe all legislation should come with an accompanying plain English companion that does it best to describe the purpose and intent of each section and clause in the legislation.
There is a twist but;
How would people like to have a vote exersized even though they are not financial? The key to doing so is found in SCS 10/34078. This matter was dealt with by a Senior CTTT Member acting as a Strata Schemes Adjudicator.The Adjudicator stated in his reasons, words to the effect, that a non-owner was entitled to vote at the AGM because the non-owner was a proxy. The non-owner is entitled to vote and so is entitled to submit motions. So any motion on the AGM agenda submitted by the non-owner, who was a proxy, was fine.
Now it gets interesting. There is no financial restriction on appointing a proxy; i.e. it does not matter if a person is financial or not, they can still appoint someone else as their proxy. By virtue of being appointed as a proxy a person is then entitled to vote; according to the “logic” of the Adjudicator in SCS 10/34078.
By appointing a proxy the question of the financial status of the person who is now entitled to vote would relate to someone other than the non financial owner. The non-owner (the proxy holder) is entitled to vote, according to the “logic” of SCS 10/34078, and a non owners being financial or not financial is a meaningless question.
If a non financial owner gives a proxy to another owner then the question of clause 10(8) of Sch 2 would become “is the other owner financial” because the other owner is now entitled to that vote; according to the “logic” of the Senior Member in SCS 10/34078.
In reality the proxy is merely conveying the owners vote, for the owner, in the owners’ absence, if the owner is financial. If the owner is not financial then the proxy can vote all day but that vote should not be counted but if one wants to use SCS 10/34078 as “the benchmark” for who has voting entitlement then the door is open for non financial people to give voting entitlement to others via a proxy, others who could then vote by virtue of being a proxy without the need to be financial.
Tell me about it. We have AGMs' with motions directed at controlling drug use and alcohol consumption at the AGM. AGMs can be frightening and we have our fair share of owners who will not come to an AGM.
The stories of disgraceful behavior at AGMs is common to many SPs.
Regrettably the strata gods (CTTT) do not see hostile AGM environments as dysfunctional management.If your local library has it, a book called Horsley's Meetings is very good for understanding how professional meetings should be handled. You would still need to understand the statutory requirements for strata meetings but if you can put the two together you will at least know what should occur.
You can move a procedural motion — That the agent vacate the Chair and “Joe Bloggs” assumes the Chair; in an attempt to get a Chair who might try to control the rabble. The meeting will need to pass the motion.
Normally it is only people who are entitled to vote who speak on the motions put before the meeting. You could move a procedural motion — That the Chair ejects the non-owners. See how it goes; you will at least be seen to be trying to establish some form of order.
AGMs are not forums for general discussion. They have a fixed agenda and that is all the meeting can determine. You should, if it is not to late, use clause 36 of Sch 2 of the SSMA and requisition some motions so at least what you want discussed gets put on the agenda and discussed.
There isn't much can be done about people giving other people proxies except try lobbying harder to get those proxies yourself.
I know exactly where you are coming from and I look squarely at the poor service provided by the strata overlords for not taking action when this sort of thing occurs year in year out.
If you read Horsley's Meetings you will see a civilized way to have meetings; trying to implement it is another story.
At AGMs in my SP there is always a wolf-pack waiting to consume anyone who is not on-board that groups little bandwagon. It is an occurrence all too common in too many SPs.
This is one of those cases where the OC should have known what was going on but this situation also highlights how difficult it can be to keep tabs on what owners do and how long it can take for some matters to come to light.
Struggler makes a good point; why should the owners have to pay?
Definitive answers generally come from the Court of Appeal and that is a long and expensive haul.
The key words in this issue seem to be “common property doors”.
I do not think the new owner bought the “illegal” door. If the door is on common property it was not the original owners' door to sell to the new owner. The new owner shouldn't be responsible for the door.
It was wrong of the owner to upgrade without telling anyone and that highlights the diligence an OC needs to have.
That the owner who installed the door is long gone may well leave the ball in the OCs' court.
The history of the door (i.e time it has existed) would be a factor given significant weight by CTTT if cases i have seen are indicative. In cases i have been involved with the “time factor” seems to be enough to establish things with some CTTT Members; even if the thing was wrong in the first place.
The beauty of the Flat Chat forum is that there are so many lessons to be learned for Strata owners. An OC needs to check all work done on the property to ensure it was what the OC desired.