[The Hood]

Not following why the NCAT decision is not contrary to the Regs.

The Regs set  times, the order sets different times.
If these times are not the same then there are times when one says can and one says can’t – that’s contrary.

In effect you are suggesting that even though there is entitlement to operate tools as per the Regulation a by-law can infringe on that entitlement.

To take the implied philosophy a step further am I to believe that regardless of what some State Regulation says strata owners can, with the support of their clique at a general meeting, pass a by-law that undermines or reduces an entitlement found in those Regulations. Seriously; that is what I am reading.

“… it expands on them (the Regulations)…..”
Expansion?  Further restricts seems more appropriate words and as we know from the High Court there is a big difference between supplement and complement.

Dixon CJ, Williams, Webb & Fullagar JJ <250> … such a power (to make a by-law) will not support attempts to widen the purpose of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislation has adopted to attain its ends …
Shanahan v Scott (1957) 96 CLR 245 High Court of Australia

I would just like to highlight that fat chance anyone living on normal freehold land in the ‘burbs has of getting this type of outcome. If there was a noise complaint about tools then the establishment (the Old Bill), not NCAT, would just point at the Regulation yet in strata am I to believe those with the ‘privilege’ of strata can infringe on rules applicable to the rest of the State via a by-law.
Sorry – No Sale!

[The Hood]

The Member errs in thinking the hours of operation are the usual hours.
But it also seems there was some operation outside the permitted hours and that that operation was in breach of the Regulation, i.e. it could be heard in another dwelling.

Still there is no basis for the Member to infringe on the entitlement found in the Regulation.
Interestingly the Regulations do not get mentioned in this matter.
The NCAT Members Code of Conduct, and I use those words rather loosely because there is no consequence for failure, requires a Member to “ensure that all decisions and determinations are legally well founded.”

The Regulations give an entitlement but the Member chooses to change that entitlement; where is the foundation to do that?  Not in a by-law.

You might also notice this is another case where a Member is giving effect to a mediation agreement. Well, the parts the Member likes.
It is dangerous to agree to anything at mediation these days as most people would be unaware a Member is likely to take what he / she wants from an agreement and make orders to whatever effect the Member wants.

[2019] NSWCATCD 47:
38. I am satisfied that the use of power tools, especially outside usual hours (9am-5pm) on weekdays, on weekends and at night, is likely to interfere with the peaceful enjoyment of any occupant of Lot 1 and appropriate orders should be made of the applicants. The parties reached an agreement with respect to power tools as set out in the Mediation Agreement. However, paragraph 2 of the Mediation Agreement which has specific restrictions on the days and times of power tool use appears to be relevant to the period of renovations that were taking place in Lot 2 at that time. I accept the respondent’s evidence that those renovations are now complete. So any use of power tools now would be for other projects, of which there is no specific evidence. Paragraph 4 of the Mediation Agreement is a general provision that the Occupant informs the applicants if power tools are to be used for longer than one hour in duration. This paragraph is unclear in its terms – is it continuous use for one hour or if power tools are used for a few minutes over the course of an hour. I consider the term unfairly onerous and unclear, so decline to make an order in the terms of paragraph 4 of the Mediation Agreement.

39. However, as I am satisfied on the evidence that power tools are still being used in the evenings by the Occupant, sometimes late at night and that this usage is likely to interfere with the peaceful enjoyment of the applicants of their lot, I consider the appropriate order to be that the owners and occupiers of Lot 2 are not to use power tools outside the hours of 9.00AM to 5.00PM from Monday to Friday, nor outside the hours of 9.00AM to 1.00PM on Saturdays and not at all on Sundays and public holidays. As occupancy of lots may change over time, and although there was no evidence that the current occupancy of Lot 2 might change at some time in the near or distant future, I do not consider it appropriate to make the time period of the order open-ended and to bind future occupancies. Accordingly, I make the order for a period of 2 years.

[The Hood]

Jimmy-T wrote:

The Hood wrote:

Interesting call given in another thread our agent claims come close of books any unspent money in the capital works fund becomes unspecified surplus, i.e. money does not accumulate to any purpose.

The difference would be between unspent and unallocated funds. A smart strata manager would recommend either bringing forward some of the capital works (CW) or reducing the CW portion of the levies until such times as everything was back on track.

What owners really need to see is a list of future CW projects, how much they are likely to cost and where that money might come from – accumulated funds, special levies or strata loans.

Large SP so ever cent is allocated to a line item, a purpose, at the time of raising. But it all becomes surplus 12 months later if not spent; says the not very good agent.
A genuine surplus would be left overs from an executed specific project (line item) that too much money was raised for.
We don’t even follow the plan, or necessarily spend it on a line item, it is often spent on items that no estimate was ever made for. The legislation is a wish list and failure to comply means no consequence in too many cases.

[The Hood]

 

Jimmy-T wrote:

It’s one of the quirks of NSW strata law that schemes must have established a 10-year a capital works or maintenance plan, but are not required to fund that by accumulated levies, as some may prefer to use special levies or strata loans.

“Accumulated levies”.
Interesting call given in another thread our agent claims come close of books any unspent money in the capital works fund becomes unspecified surplus, i.e. money does not accumulate to any purpose.
Of course i think the agent is, as is the case more often than not, incorrect.
If money, if raised for the plan, does not accrue for the plan then the whole concept of the plan is a joke and owners who don’t even bother to ‘save up’ can enjoy chunky special levies or bigger levies to fund loan repayments.

[The Hood]

SP36965 addressed this issue.
It transferred $8309 from its sinking fund, as it was then, to its admin fund which had a deficit of over $8k. The OC did not meet the requirement to call a general meeting to recoup the amount. Instead, many months later, an owner put a motion on the agenda of the AGM to address the recouping.
The OC agreed to recoup the money but to do so at a rate of $800 per year until it was recouped. Recoup the amount at a rate of $7 per year, per lot, in a SP with 115 lots; what a joke. It was capital works money they were recouping. Hard to execute a 10 year plan while waiting for the money to come back.

The Tribunal said
“In order to meet the applicant’s point, motion 84 was put up in the 2012 Annual General Meeting and amended so that the respondent would comply with Section 71 of the Act. However, motion 84 was amended so that the amount of $8,309 would be recouped by a total levy on all lot owners in the sum of $800.00 per annum until the amount was recouped in full.

The applicant does not accept this way of proceeding and has taken the view that the proper course is for there to be an Extraordinary General Meeting in order to impose a special levy for the payment of $72.25 per unit entitlement in order to fund an immediate payment of the $8,309.00, or periodic payments for a period not exceeding one year to the same effect.”

The Member then went on to claim to have no jurisdiction to order a general meeting to make the OC recoup the money (in a sensible time frame). Case dismissed. SCS 12/40868 (unreported)

Another atrocious decision. The matter of the poor decision was taken up with Macquarie St given what was occurring was making a mockery of the Act.
If, as Mr Bannerman forecasts, there is going to be change to make recouping in a realistic time frame law then bravo to Macquarie St for their quick action – full sarcasms intended.

[The Hood]

The agent says:

“The funds that were not spent under those line items is now there as an unspecified surplus in the capital works fund.”

That means owners were collectively levied $50000+ over 3 years for no real reason.

AND

Money raised annually for the 10 year plan just becomes unspecified surplus after each 12 month period, it is no longer for painting  or new carpet or a new pool filter or whatever it was raised for. That’s an interesting take on it. Does Capital works money have a 12 month shelf life as a line item after which that intent gets lost and the money becomes unspecified surplus that, in theory, could be distributed back to the owner under s 77 – makes no sense.

[The Hood]

Jimmy-T wrote:

Boronia wrote:

I think this agent has misinterpreted Section 79 (6) of the Act: (6) An owners corporation of a large strata scheme must include in the estimates prepared at an annual general meeting— (a) specific amounts in relation to each item or matter …

Well spotted. This means only large schemes have to include spending plans but smaller schemes still need to have a maintenance plan in place – they just don’t need to put figures in place.

For instance, this could say that they will need to replace garage doors in an estimated so many years, without necessarily committing to a cost required to do so.

79(6) relates to the budget; not the 10 year plan ‘budget’ as set out in the plan.
A large SP only really needs to have “10 year plan” as an item in its CW budget if it doesn’t care to itemize the plans details. No detail required.
Typical 10 year plan will have what the expected expenditures are for, the specifics. It will to some degree itemize what you are saving up for and when it is expected you execute the spending. That is if you had a ‘professional’ draw it up. And owners should have a copy of it or can at least have access to a copy.

[The Hood]

newb wrote:

I’m reading through the new Property and Stock Agents Regulation 2022

under the

Property and Stock Agents Act 2002, care of Victor Dominello.

And so far it’s a pleasure.

A shame these can’t be applied retrospectively.

Eg.

Code of conduct

Record of trust account transactions…

I’m looking forward to reading schedule 4 and schedule 12

The Code of Conduct is worthless window dressing and if you want to be realistic about it then you will realize it sets an impossible bar.

1   Knowledge of Act and regulations

An agent must have a knowledge and understanding of the Act and the regulations under the Act, and such other laws relevant to the category of licence or certificate of registration held (including, laws relating to residential tenancy, fair trading, competition and consumer protection, anti-discrimination and privacy) as may be necessary to enable the agent to exercise his or her functions as agent lawfully.

[The Hood]

Jimmy-T wrote:

TrulEConcerned wrote:

tell your agent you’re interested in contacting all owners about (mention some important matter) and for that you would like their names and email addresses to be sent to you (in no longer than say 3 days’ time). The agent cannot deny you that.

Are you sure? I don’t recall anything in the legislation that says the agent must forward owners anything. You are right about allowing inspection for a nominal fee. Take your phone and photograph or scan the lists to save you photocopying fees, if you want.

Take your phone and camera??
SP***** (self managed at the time) made me take hand notes and refused to allow me to photocopy (even on my own copier) or take pictures.
Just be nasty but nowhere does the Act prohibit the OC from being nasty.
Seems they were happy to make access to the roll as difficult as possible because some owners objected to the information being available. And this inspection only took place after the OC was ordered to make the documents available.

Lots of talk in the Act about ‘allow inspection’ and ‘make available’ but little on how copies are to be taken.

183 (4) A person entitled to inspect a document may take extracts from, or make a copy of, the
document but must not, without the consent of the owners corporation, remove the document
from the custody of the owners corporation.

Sure we all have our own idea of what ‘make a copy’ involves but what we think actually means nothing. We need to know what the Courts say it means because that is what it means.

[The Hood]

I was hoping for some re-education of the agent. FT have done that in the past on some other issues.
Honestly, I do not expect anything positive from FT when i raise issues.
The vast majority of complaints from people are just busy work for some public servant who sends out empty information that does nothing to make the strata management sector any better.

As TrulEConcerned writes “agent’s legislated seemingly “get out of jail free” card to be a slap in the face to lot owners and that the relevant act(s) regulating an agent’s conduct be renovated by holding an agent to a far, far higher standard, with significant penalties to be imposed for breaches.”

[The Hood]

Agent says:
“It would have been in a CPD or a industry update session by a lawyer at some stage”

If there is another agent who reads this then they might recall it, that would be handy.

CPD i doubt, and if some brief says so then there would likely be another brief somewhere else saying otherwise.

I still think the agent is making it up to cover the not just the inconsistency.
The motions rules out of order were from someone the agent would have liked to annoy.

[The Hood]

TrulEConcerned wrote:

My recent experience may inform The Hood as to his next steps.

Ask the managing agent and committee for copies of ALL correspondence relating to insurance matters, say for the last 2 or 3 years. This should include

(1) emails to/from the managing agent and insurer;

(2) emails to/from committee members and the insurer;

(3) emails to/from managing agent and committee member; and

(4) records of phone calls of the agent and committee members with the insurer (and what was agreed/discussed).

It should not take long to discover the real reason coverage was denied. IMHO, coverage is declined because of something the committee or agent (on behalf of the OC) did or did not do. The records, if made available should answer this question.

 

Jimmy-T wrote:

The Hood wrote:

I think the reason is not that relevant as the question is what happens when the OC can’t get insurance

However, it is ironic that strata schemes are legally obliged to have insurance but insurance companies are not obliged to provide cover at any cost. That’s something Fair Trading could have a look at … just as soon as they appoint their next training wheels minister.

Exactly  right with the irony of it all. And I believe Victor is back for another stint of being ineffective.

The agent says:
The main reasoning from the insurers has been ‘ due to construction of the building and the high bush fire exposure’.
Neither can be corrected. The SP is in a bush land setting and the buildings are what they are, i.e. multi-storey sawment construction (a mixture of sand, sawdust and cement in timber framing).

I somewhat like the idea of can’t insure as the building are hardly used, cost way to much to insure and represent bad decision making in the past. The main building (the Hall) was commenced in the early 1990s and still only has interim approval after the local Council had the embarrassment of giving the Hall an annual $2000 donation as part of its public hall funding program when the Hall was still a building site and not available to the broader public due to the then terms of the SSMA which made leases ans licences not available to the broader community.

It seems some of the many defective strata buildings in Sydney might soon run into the can’t insure issue so perhaps while the ‘Strata Act’ review is still under way the boffins down in Macquarie St might like to consider what to do.

[The Hood]

I think the reason is not that relevant as the question is what happens when the OC can’t get insurance; the requirement is they must  have it and there are penalty points for non compliance.
A couple of reasons thrown around include mixed construction buildings and  the insurance company moving away from the type of risk exposure the SP represents; bushy rural landscape. All very hand waving stuff.

To use an analogy: The obligation to maintain and repair is not dissolved because the OC can’t find a repairer even if the OC has diligently sought one.
Same here, I can’t see the mandatory requirement (assumed mandatory due to penalty points applying) being excused because the OC hasn’t found an insurer.

[The Hood]

Thanks newb

It is a 1974 building and the land footprint definitely goes to the mean high water mark.
The riparian zone is interesting; almost the entire footprint of the SP is in the zone, including the whole building, if the maps are accurate..
And this is not the only SP in the zone, with the erosion issue.
A troubled future for those on the flood plain out that way.

[The Hood]

UPDATE: Excavating and fill is considered ‘earthworks’ and any filling beyond dressing or top soil is considered earthworks so that places the ‘work’ to fix the minor slip under the EPA Act and even though s 106 still applies it is not authority to just proceed.
If only Council could have made it that clear.
DA is required but the work maybe ‘exempt’ depending on a few other factors.

The OC under these circumstances is subject to the slow and laborious processes of the local Council.
Sorted.

“If the council says the fill needs a DA, then it needs a DA.”
I would never trust a government body to the extent i would do something purely on their say so. They are not that infallible and generally not that competent. No disrespect intended; just saying they too often get it wrong.

[Author]

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