[The Hood]

Nice question.
First things I would ask is under what section are you seeking an order against the OC and what order?
If you are gunning for a SC member/s then that order would be under s 238 and that order would be specific to the individual/s.

Can the OC pick up the tab if the SC member “lawyers up” OR uses the OC lawyer?
Interesting and a little grey.

I have not seen case law on that.
It would be argued along the line of that as  the people are SC members that makes them an ‘assistant’ for the OC analogous to being a director on a company board (see NSWCA 2EBR case).

How a NCAT member would deal with any issue over the ability of a SC member to come under the legal expenses umbrella of the OC in a s 238 case is a matter I am yet to see in a decision. As Barrett JA says in 2EBR “The analogy with the board of directors of a company is clear but incomplete.”

We can all express our views but let’s be frank; those views are worthless. It is what the Courts say that matters and they haven’t spoken on that as far as I know.

Should you even go there?
Since the introduction of s 238 it seems to be the situation that there is not one reported case of anyone having any success removing a rogue SC member.
The reason appears to be s 238 is considered by NCAT to be on par with s 237 and as such one needs to be so hopeless an SC member/s that they bring serious dysfunction to the OC. That position is a long way from an ordinary reading of section 238. It is a bar set very high by NCAT.

Jimmy says:
“Perhaps your best tactic at this stage is to let other owners know that you will be seeking all costs, which might get them to persuade the EC to back down.”

I like the EC reference; that’s old school, nice!
A few problems there. At first instance, a single member NCAT matter at its first hearing (i.e. not an appeal), it is highly (95+%) unlikely you would get costs although it occasionally happens.
Also I am not a fan of the standard “intimidate the other party financially” with assertions about costs. Lawyers; what can be said about them.
Works on plebs but once lawyers are in the game it goes both ways, you could be up for costs and note the above comment on the s 238 success rate. Statistically you are going to have to beat the odds to win so if anyone should be concerned about costs, I will let you do the math.

Also keep in mind NCAT have to grant leave to allow representation; sadly it is somewhat automatic if one asks in a lots of cases. Not a lot of cases where leave is refused. Best avenue to pursue is to not have legal representation yourself and argue neither should the OC or other party if they seek leave. There are some good cases that put forward strong arguments why leave should be refused if sought.

I like this comment in one of the reply posts:
“expected benefit > your expected costs.”

And that is why there are a lot of problems that never get addressed in strata.
As a quick aside a lot of readers would be aware there is a small fee for owners so the strata hub can run.

Several years ago I calculated that if every unit in strata in NSW paid a $4 fee to the State it was enough to fully fund CTTTs (as it was then) expenditure dealing with strata and as such if every lot paid that $4 then going to what is now NCAT could be free. It would also mean specialist strata Members rather than any old person who might have near no strata law understanding. The cost would likely have been less that $4 per lot because I did not factor in revenue gained from application fees.
The only issue I could see with such a proposal was NCAT might get swamped with applications as people would almost be incentivized to take up their problems.
Instead we are looking at an application that costs over $100 and as such expected benefit > your expected costs comes into it for some and that is before you even ponder a brief. It is a rubbish situation. Often issues aren’t worth it financially to the individual to take on even though they should be addressed.

Bottom line when it comes to your question is that all you will get is opinion, and that is the same if you ask the same question to a lawyer.
The answer is not clear or even indicated in any case law I have seen.

[The Hood]

Most trespass is under the following

Inclosed Lands Protection Act
4   Unlawful entry on inclosed lands

(1)  Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding—

(a)  10 penalty units in the case of prescribed premises, or

(b)  5 penalty units in any other case.

There is an implied right of entry for a lot of scenarios and absent that implied right then one needs to refuse to leave after being asked to leave. Then you can call the Old Bill or maybe consider s 100 of LEPR Act

100 Power of other persons to arrest without warrant (cf Crimes Act 1900, s 352)
(1) A person (other than a police officer) may, without a warrant, arrest a person if—
(a) the person is in the act of committing an offence under any Act or statutory instrument, or
(b) the person has just committed any such offence, or
(c) the person has committed a serious indictable offence for which the person has not been
tried.
(2) A person who arrests another person under this section must, as soon as is reasonably
practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

[The Hood]

We has a case out here where an owner was not allowed to return to their lot for a period of 2 years by a Court.
He lived in the National Park for a while before selling, moving to the back of nowhere, and suicided.
But that was a PVO case and a court order likely to have been overturned had the defendant appealed.
Ziggy; there is a saying in strata and that is “you get what you deserve”.
This has happened because the OC has allowed it to unfold and happen hence the saying.
It represents poor management.
It is common to a lot of SPs. The OC send warning letters, they grumble, they do everything but pursue the resolution mechanisms in the Act and when it all gets out of hand then they consider the resolution options.

Your OC needs to stop being soft and get after this reprobate.
Who is running the place and why have they let it get to this?
You might need to address your management structure because it has failed.

[The Hood]

kaindub wrote:

You are confusing roles here, The chair of the meeting conducts the running of the meeting, ensuring everyone is able to debate any motion. You could just as easily have the real chairman, or any other agreed party to be chairman.

I think you miss some of the key aspects of what is going on here.
The agent has fiduciary duties. There is a massive conflict when it comes to being Chair for this motion because the Chair has such a huge financial interest in the motion. The issue arises when the Chair is asked to rule the motion out of order. There is a whole lot more to being Chair than seeing orderly conduct and discussion.

We have the agent as Chair and questions are asked about the validity of a motion that has a $140k potential benefit for the Chairs company. Even if the Chair declares the interest where does that leave them; they are still Chair and they still have the $140k interest. Of course they are not going to rule the motion out of order.

Then there is the agents’  fiduciary duty to act in the OCs best interest. See PSA Reg – General Rules for all Agents
Most people do not even know there are general rules in the PSA Regulation for agents.

Is it in the OCs best interest for the agent to give some guidance when the OC could save $10k+ per year, of course it is. If this was related to say a water ingress issue then it is highly likely the Chair (agent) would say “save the 10k” and go with quote B if the OC is getting the same service and product as from quote A which is $10k more.

The issue might be better said as how does the agent juggle the fiduciary duty with their personal financial interest?

“… easily have the real Chair”.
No, the ‘real’ Chair would not touch it. Our SC is a show up, make a few decisions which are normally about items not on the agenda, posture and go home SC. They have next to no knowledge of the SSM Act and really don’t care for it anyway.

[The Hood]

Jimmy-T wrote:

Also, if the strata mangers are holding proxies, they are entitled to vote except on matters relating to their contracts or remuneration.

This is a common misunderstanding.
Proxies do not have entitlement to vote. Sch 1 clause 23 talks about who is entitlement to vote.
Proxies are entitlement to cast the vote of the person with entitlement to vote (if the person with the entitlement is financial).
It isn’t semantics.
I recall many years ago the Strata Living Guide made the claim that proxies were entitled to vote.
It was wrong and the claim has since been removed.
Former CTTT Member “Mr. Bow Tie” even made such a claim in a decision.
He too has also since been removed.

There is no rule about needing to be financial to appoint a proxy.
Entitlement to vote is not “transferable” by filling in a proxy form.
That is why a non financial owner can’t just give a proxy to another owner, or non owner, or agent, and that other party then has the entitlement to vote.
If the proxy then has the entitlement to vote then there can be no question of “is the person entitled to vote” financial if the proxy is, say, a non owner.

If a non financial owner gives a proxy to someone then that proxy’s cast vote does not count if the owner with the entitlement to vote (the owner) is not financial. The owner is the one with the entitlement to vote and a proxy only has the authority to cast the vote of the person entitled to vote ; the proxy has no ‘entitlement’.

[The Hood]

I think you know the one.
We have solar. We misrepresented on the application to get a grant for it, we payed way over what we should of for the small system that will never reach ‘payback’ and it would be hard to find a worse place to put it.
But it does mean we can make certain fuzzy warm feeling claims on a website.
The claims on the website are somewhat misleading as solar power was $17000 per kw ($US) of panel when the development started in 1982 yet the website claims we are a solar village. $17k  in 1982 is the equivalent of $67k today on the RBA calculator. Even today with affordable solar panels the SP is still a little like a Stalag as it is “lights out” not long after sunset for a number of owners because solar isn’t just a bunch of panels. There is also  the issue that most owners will never get to packback on their solar systems because when you factor in batteries and the electronics it sees the number don’t add up. Not a lot of greenness in this alleged green oasis.
The website only speaks to the dysfunction. If you go to the website today it still has the contact info as the 2018/19 SC and two of those people don’t even live here anymore.
Aspect of the strata plan if embellished and fluffed look good on paper if presented in a certain selected light but on the ground it is probably one of the most dysfunctional SPs in NSW.
A few shots of some bush land and a koala are enticing but beneath the sugar coating is not the flavor one might expect.

[The Hood]

This might surprise some but in my SP we are zoned for that sort of thing and it is DA exempt.

2   Permitted without consent

Environmental protection works; Extensive agriculture; Forestry; Home occupations; Home occupations (sex services); Intensive plant agriculture

[The Hood]

The OP said “I referred the behaviour of the OC and strata mgr matter to NSW FT and as a courtesy, informed the OC and the agent of this.”

I have often referred the behaviour of a strata manager to FT, to the compliance division of FT which is not the mediation unit. No point in mediating such things. There isn’t a code of conduct for agents in the PSA Act for fun, although it seems window dressing.
I have applied for mediation, never referred. I have referred to the compliance division, never applied.

OP has since clarified. My apologies for interpreting their comment as being a refereal rather than an application.
Just on mediation; there are provisions to apply to have it not needed, i.e. dispensed with, s 218. This is a lot narrower than the 1996 version of the same, s 125, which only required one to show mediaition was inappropriate. I did successfully have mediation dispensed with just once and that was in relation to a records search. A records search is now, in the 2015 Act, one of those matters that do not require mediation.

And as I said before – never agree to anything at mediation as NCAT will look at these agreements and give weight to what is in them.
From a legal stand point these are dangerous agreements for ordinary owners to enter into without proper legal advice on what is proposed to be agreed to.

A couple of cases where mediation agreements meant something at NCAT.
Macey’s Group Pty Ltd v Owners – Strata Plan No 33591 [2021] NSWCATAP 7
and
Gorski v The Owners Strata Plan No 36965 [2019] NSWCATCD

 

[The Hood]

I understand “Generally, it’s up to the person or body that’s disputing the status quo to prove that it is erroneous. ”

No one is questioning the status quo, the OC do not know what the status quo is.
Surely the OC is required to know the status quo, to know where the common property is – bizarre if they are not.
I can just see an OC in the Supreme Court.
The OC, “but your Honour no one has established it is common property and we have no idea where the common property is”.
Your Honour ” I see, matter dismissed”.

[The Hood]

The seeking of costs is the standard intimidation for the non strata savvy. All too often disputes go away if the OC, agent or a brief representing them starts talking about costs. It is just cliché intimidation. Costs are rarely awarded at first instance NCAT matters and are hard to get even at Appeal Panel level (the next step after the first try at NCAT). If you ever read about 20 or more NCAT cases relating to costs you will see it is so unpredictable it is embarrassing for NCAT.

Your SP is, prima facie, without question dysfunctional. To be blunt you are wasting your time trying to get FT, I assume the compliance division, do anything beneficial as they are more window dressing except in matters that verge on, or are, criminal.

I can’t see where the forum keymaster got the idea you have initiated mediation but if you haven’t then do that for fun. It’s free and it lets them know you aren’t a push over. There is no financial consequence, or any consequence, to doing mediation. I would mention it is likely to be a few months before you get a date because Fts mediation unit is like most things the State operates; i.e. under resourced.
I would suggest do not agree to anything if you do go to mediation because even though FTs’ mediation unit says these things are in good faith that is rubbish and NCAT will consider and give weight to what is in an agreement if someone uses it at NCAT.

That the agent and OC want to bounce you off the other when it comes to information is something that can be resolve by paying the $34 and requesting a search under s 182. Look up s 182 to see the process. If the agent or OC do not come to the party in the timeframe set by section 182 then cart them off to NCAT, no prior mediation required, where they will be ordered to give you what you seek as long as it is something the Act says you can see (see s 182(3) for that list). NCAT do not like OCs and agent who do not play nice when it comes to s 182.
If you do need to pay the $34 then ask to see everything on the list even if you don’t care for half of it. Agents dislike searches because they only get $34 for it and it takes some of them hours to get everything together. There is no money in being required to get everything out to present for a search.

Section 29 says the OC must appoint a SC. Probably one of those ‘musts’ than really means should because you don’t really have to but not having a SC has consequences. No SC then you either have to hold a gm every time you want to make a decision or you can delegate the functions of the SC to the agent (see s 29).

On assigning all the SCs’ power to the agent. That is either in the agreement or not in the agreement. If it is not in the current agreement then I do not believe the OC can just call a general meeting and delegate that function (see s 10(2) and 11 (b) before looking at Part 4).
In part 4 you will see at 49(2) the appointment is by instrument (an agreement).
Unless your existing agreement has some complex clause relating to changing the terms of the agreement you would need to terminate the current agreement and adopt by resolution a new agreement that did delegate the power of the SC to the agent. I would take it from the OC calling a gm that the existing agreement does not have a clause that already delegates the SC power to the agent. Most likely you are in the later boat; you need to terminate the current agreement and adopt a new one specifying the agents’ new authority.

Yours is a welcome to strata case. Dysfunctional people in positions of power somewhat protected by a broken system that does not help the aggrieved when the States licenced agents and framework for operation fail those who trust in them.

[The Hood]

“This is hardly the place, in my opinion, to be debating well-established science with people who have their heads in the sand.”

It is the early 1900s and the worlds scientist are convinced there is a ‘spacial ether’. A greater percentage of scientist believed that than believe in man made global warming.  We now know they were wrong in early 1900s.
Do not rush to take ‘well established’ science to the bank.
I know that the ‘whole’ scientific community can be wrong.
I am not passing judgment on global warming science but I am passing judgement on those who are told something is true and blindly trust it is so and then use emotive and dismissive language like “head in the sand”.

It is “head in the sand” to dismiss that at times in history a greater percentage of scientist have been wrong.

It isn’t about car emissions, it is about the unsustainable consumption. Charging stations and electric cars aren’t going to save the world but we are led to believe it is a step in the right direction. It isn’t really.

[The Hood]

A qualified request (a ‘petition’ with 25% of unit entitlement) is a trigger to require a gm, (see s 19)
Does not matter if people go door knocking to get it and i really can’t see how that is underhanded I do not follow what “via strata” means in this case.

If you have voted to repaint then that vote, absent any specifics on colour, would mean repainting in the same colour. That would have been an ordinary resolution although repainting could come under a s 106 matter and no decision required because there is a statutory duty to maintain and repair.
If you want to change colour then as silly as it might sound it is best practice to hold a gm to by special resolution make the colour something else because you are altering the appearance of the common property.
At [one Sp] they changed external balcony paint colour by SR at a GM to be bullet proof because no one can complain. The SC ran the gm and it cost $60 to get a very formal decision. That might be over kill but for $60 it is worth it compared to the cost of dealing with some litigation because some owner has issue with the new colour that some ‘alpha / queen bee’ SC member chose.

[The Hood]

In theory this sounds good but on the ground in SPs where we see alphas and queen bees and people whose idea of strata is mob rule and zealots who are uncompromising (pet laws being a great zealot deter) this idea will not work because of the nature of the participants.
Granted the element i speak of are hopefully a minority in the grander picture, I don’t have data on that, but what a disaster it is trying to reach consensus with irrational, illogical, bias people who like to ostracize others and shut down discussion with personal attacks and unsavory methods that are quite deplorable; but far too common.

The concept is worth a read because you might be lucky enough to live in a strata where this can work.

[The Hood]

excathedra wrote:

I own a VW Polo, and receive regular e-mails from the dealership where I bought it. The latest one includes reference to the latest version of the Amarok truck and starts with

“That feeling you get when you know nothing stands in your way? That’s what it’s like to drive the all-new Amarok.

Now is your chance to get behind the wheel and max out on everything.”

What hope is there?

 

Jimmy-T wrote:

….. In this user-pays world, that could be a route worth exploring.

Interesting FT, even NCAT, still talk of strata being collective living while we see the user pay vibe permeating other views.
Strata has lost its identity as people from the user pay world move in.

[The Hood]

For over 20 years I have lived in a large SP that has a consistent default rate of 25-30% of owners and this has resulted in a situation where as of today the arrears, $134000+, constitute 55% of the SPs assets.
The owners seem happy with it.
We haven’t had cash flows issues because the OC horribly over levy the lots leading to very large surpluses accruing in the admin fund. The owners seem happy with that as well.
I was once given a figure of 1.5% default rate as the average rate across NSW.
Sounds like half your owners are in arrears.
Might be time to consider the very slow and expensive legal channels to pursue arrears before you start paying extra in levies to carry the defaulters and head-off the cash shortfalls that arrears can generate.

[Author]

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