[Billen Ben]

…. and the lawyers come out to play. What a classic case of  communication failure within another SP. Why are legal representatives and agents doing the talking?

I feel a little sorry for the agent if the owners who passed the special by-law now want to say “but the agent this” or “but the agent  that”. None of the owners who passed the special by-law seemed to have been aware of their common property which they have beneficial ownership of.

The owner clearly did not know what he purchased and the OC clearly did not know what they owned as common property. A case of dumb and dumber perhaps.

Should the OC be responsible for legal costs? Ignorance has created this situation and it seems both the OC and the owner have been ignorant. The key to this problem is not who should pay so far, or as the matter escalates, but how to minimise the damage because this can blow out significantly if people get fixated.

If there have been costs so far then forget about who is responsible, just pay your own costs, consider it the cost of learning and see there are no further costs. If who pays for the costs so far ends up a battle then there will be significant additional costs and someone will be paying them.

If the matter goes to a strata scheme adjudicator then no costs can be awarded at that level. If one party has a problem with the adjudication outcome then it can go to the Tribunal where costs can be awarded; it can then go to a real jurisdiction i.e. the District Court (or higher) where costs can also be awarded.

Responsibility for costs can become about winning, generally the winner wins and the loser pays. The question is will the OC prevail if it wants to fight for who is responsible for the costs so far.

This matter would not be on this forum if the owners knew what is the common property area and what wasn’t. Just consider the costs to date as being the price of ignorance.

What about the accountability of the agent?  What about the accountability of the owners who show up at an AGM oblivious to what is their common property and just assume because some agent is involved at some level that everything is A OK. Is it in the agency agreement that the agent is responsible for the owners knowing what is their common property? Good luck finding that clause.
Owners need to take responsibility for their ignorance and in this case they should be held fully responsible. The motion for the by-law should never have been put to the meeting because some owner should have got up and said “hang on; this is about common property, Joe Bloggs does not have any entitlement to that particular area, its common property”

What rights does this person have to persist?
We had an owner buy a lot in our SP only to find a part of the house had been built on the common property, 3 owners and 15 or so years beforehand.
The EC in its infinite wisdom sent the owner a notice to comply requesting the house be moved. The matter ended up with an adjudicator who said the OC was being unreasonable and the adjudicator gave the owner exclusive use of the 15 sq m of land given it was hard to see how the land was of any real use to anyone else in the OC. The OC appealed to the Tribunal but withdrew the appeal on hearing day; much to the displeasure of the Member who had read a pile of files 30cm high to prepare for the matter.

The owner in your SP has a right to have a go but how he will go is up to others; CTTT is a lottery. CTTT is not a place that any sensible person would want to go to.

If the area is of no real use to the OC and it is hard to imagine owners getting any genuine beneficial ownership from the area in question then just give the owner exclusive use and be done with the matter.

Acquiescence by virtue of time may be the outcome if a battle develops. Consider that the OC allowed the owner to use the area as if it was his own for years. Consider that the OC then voted to allow the owner to enclose the area as if it was his own. Consider that now someone in the OC has realised the area is common property and all of a sudden there is a big stink over the area.

There are numerous horror stories in the Supreme Court case files where matters comparable this have ended up costing insane amounts of money. Top priority should be to see this does not become another one of those stories.

Pay your own costs to date and learn from the mistakes, stop blaming the agent for the OCs ignorance, if he (the owner) wants to have a go he can, ignorance is generally no excuse but then CTTT is not a “real” jurisdiction.

[Billen Ben]

SSM regulations 2010
17   Election of executive committee

(1)  At a meeting of an owners corporation at which its executive committee is to be elected, the chairperson must:

(a)  announce the names of the candidates already nominated in writing for election to the executive committee, and

(b)  call for any oral nominations of candidates eligible for election to the executive committee.

(2)  A written or oral nomination made for the purposes of such an election is ineffective if it is made by a person other than the nominee unless it is supported by the consent of the nominee given:

(a)  in writing, if the nominee is not present at the meeting, or

(b)  orally, if the nominee is present at the meeting.

(3)  After the chairperson declares that nominations have closed, the owners corporation is to decide, in accordance with clause 2 (2) of Schedule 3 to the Act, the number of members of the executive committee.

(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, or

(b)  is greater than the number so decided on—a ballot is to be held.

It is like cooking a cake and the Regs are the recipe.
Jeremy; do you think what happens meets with the Regs.

Clause 4 of Sch 3 of the SSMA 1996

(2)  When a vacancy occurs in the office of a member of an executive committee (otherwise than by reason of subclause (1) (d)), the owners corporation must appoint a person eligible for election as a member to fill the vacancy. Any person so appointed holds office, subject to this clause, for the balance of his or her predecessor’s term of office.

It sound as if the vacancy needs to be filled ASAP but what it says and what it actualy means can be different things.

[Billen Ben]

Hi Jimmy
Can you give a case reference so if it needs to be “waved about” in a CTTT application it can be referenced.

CTTT disregard all sorts of things so having a reference to the case could be the difference between a CTTT Member considering comments as opinion and the Member having to deal with it because it is referenced.

[Author]

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