[isydowner]

Hi Whale, it seems my OC are claiming my neighbour arranged the installations, even though they noted in the minutes they did!

Not sure what to do now, other than renew proceedings due to the OC now rejecting their part in arranging the works while we were out!!

I think the Strata Manager reads your website too!!!

The neighbour wants to sell up now too, so a new neighbour might be lumbered with this issue too.

Any advice at this stage would be good?

[isydowner]

It’s their name and address for postal of notices only right?

Email, phone numbers or other ‘direct’ contact details are forbidden by the Privacy Act right?

[isydowner]

Hi Whale, not got a response yet from my Strata Manager but been told to just renew proceedings and have it dealt with anew. I don’t want the hassle of going through this again, but might have to. Anyhow, that’s for all your help so far.

i promise I’ll respond when I get something back either way!

[isydowner]

But who is going to make the ocs decision to ‘sue’ the Exe-Commies for negligence… themselves?

Not likely, I believe the question was about liability, with the OC being held liable for the actions of a committee… office bearers insurance is paid for by the OC covering the Exe-Commies for their actions, be they in good faith or not, regardless!

Do we have consensus on how ‘autocratic’ exe members can be held to account by either individual owners or the authorities, rather than trying to get uninterested owners involved who have already given their proxies to the bullies,  without understanding what is going on?

It seems to me the simple answer is to hold Exe-Commies personally accountable for conduct under a fiduciary owed to individual owners, exponential by those persona (or residents) affected!

Good faith actions can be determined on merit, but purposeful actions… what has case law (such as Meriton v SP72381) decided?

I am of the opinion they should be thrown to the wolves if they have acted in self-interest, but others may say no one would ever join a committee if this was the case. Heck, if they joined under this pretence, they have done so out of self-serving interests in the first place.

[isydowner]

Hi Jimmy T,

Im none the wiser… That legislation is so badly formed it doesn’t clarify who can and can’t vote or be voted on clearly. It’s a bit messy in my opinion, but I guess what I’d be concerned about us any conflicts of interest over anyone actually voted on.

What are the penalties for not abiding by these rules, if any? I bet it’s nothing more than a slap on the wrist if even that!

[isydowner]

Thanks Millie and 2300, both excellent replies

My friends thanks you both, he is considering suing his strata manager and his OCs legal representatives for fraud / negligence… But needs to make sure they cannot defend by claiming an EC member had lied to them (in writing I am assuming).

He was also quoted two cases, neithereof those you stated (which he will use your references for sure), about deceit of the courts and tribunals and that it extends to all ‘players’ no matter how small a part they played “in the deceit”.

I sometimes think we are not a democracy here in Australia, with such a weak system in strata! Bring on the much needed reforms.

[isydowner]

@JimmyT said:
Think of all those grinning politicians at the ballot box on election day.  Do you think they are voting for the other guy?  If you won’t vote for yourself, why would anyone else vote for you.

Self nomination, however, is different under NSW law.  You can’t nominate yourself if you are a co-owner (but your co-owner can nominate you provided they aren’t standing for election). [Edited]

Hi Jimmy,

Just read your post… So can two EC members (before being elected) nominate each other? Say like a chair nominate a treasurer or secretary or vice versa?

My committee have always nominated each other on those positions before allowing other owners join the committee! Can I ask were self nomination is clarified in NSW Law?

This sounds very fair to me, as it limits autocratic behaviour and may out liability on the ‘other’ owner who votes on a self-serving EC member.

[isydowner]

Agree, my friend was told that ‘legal principles’ are engaged at Tribunals by Lawyers that are representing any parties and that anything adduced as evidence by lawyers must be both true and correct.

In some case the Court of Appeal judges held that once a lawyer is sought / engaged, that they have an overriding obligation not to mislead or deceive any court or tribunal in NSW.

Trouble is, as you say, the tribunal is reluctant to do anything be it make an order or wrap a lawyer, no matter what they say, for outright lying. This is surely a big issue for reforms.

Have you any experience of how effective NSW Fair Trading, the Law Society or Legal Services Commissioner are in these matters?

To me, a lie is a lie and should be punishable by the Authorities, but they all seem to ‘represent’ each other and not the strata owners of NSW.

Sorry for the harsh topic, my friend is going through so much that we are all planing on moving to VIC were the Tribunals and Courts appear to work for its constituents.

I was born and bred in Bondi and am ashamed how Sydney people treat each other in strata, moreover the Government have allowed the Tribunal and dodgy lawyers weaken property ownership in our state.

Live and let live is my motto, but live together in unison and abide by each other’s rights is not a hard ask!

[isydowner]

Thanks Whale, sounds like the right thing to do. I’ll get back to you once I gat a response.

Cheers,

Thomas

[isydowner]

Do you not think they would claim that I interfered with common property and maybe threaten legal action against me?

The Adjudicator asserted it is common property, even though it was built on lot property… and by requesting the executive committee and neighboring lot owner cover the costs, they are more likely to use further owners corporations money (my fees too) against me to defend an NCAT application!

The most ludicrous thing CTTT did was made the order to allow it to stay on my balcony. Everything else was just brushed aside making the whole situation worse. It’s like telling an owners corporation it’s ok to do whatever you like even if it is illegal, oppressive and against the ideas of strata / torrens title!

I’ll draft a letter using what you have formulated and add in the little extra bits for you to consider. It’s worth a go but I cannot help but think they will ignore it as they have already received a big green light by the CTTT to steal my balcony… and it’s never been used by anyone other than the dog since. It’s not only uncomfortable to use now, but a total loss of amenity. Every time I see the neighbours partying on their balcony or when we go out to pet the dog, they turn on their air conditioner system as it splutters and bangs loudly… I can totally understand why that poor man in Sydney’s West brought a firearm to a strata meeting, he was bound to be putting up with the same kind of boofhead games-playing!

Sorry for the emotive response, but it really gets to me when people like your self see the obvious wrongs occurring here and the Tribunal just turns a blind eye. Hopefully the new Fair Trading Minister Mr Victor Dominello see the impact a lax Tribunal and weak strata laws have on NSW residents. I tend to believe VCAT are much fairer and actively try to encourage compliance with the law.

Whale & Jimmy T, I thank you for all your advice with this matter… hopefully your letter achieves something truly positive.

[isydowner]

Hi Whale & Jimmy T, I’ll try my best to answer your questions in the same order;

1. No units had air equipment installed at registration and the plan still doesn’t indicate it, maybe because I wouldn’t approve it?

2. Yes, system inside and condenser on my balcony, 2 on my balcony now to be precise.

3. A gap of about 500mm separates both and a large drop to the pavement too.

4. Yes, it’s part of my lot and outlines the entire balcony to the 500mm edge.

5. I dunno if they every had one, or if their complete system was located indoors.

6. I guess the drainage was already set up on mine and they (OC) didn’t want to pay for more, but I believe the drainage for mine is being used for twice the amount of whatever comes out / off.

7. It was approved by paper, but the minutes just say resolved. The vague motion was to install air conditioning equipment and drainage to serve lot 25, but   nothing more. I believe the owner might have some sway with a committee member as they also had a bollard installed free on their parking space with no mention of costs.

8. Yes, 2 now and there is no specific mention but it appears to be spent under ‘maintenance’ as did the bollard. I know our building manage has a monthly fund of $10,000 that doesn’t get itemised if that helps?

9. I argued both, that no permission was sought and they went ahead and did it when we were at work. The decision seemed to be made so the Adjudicator didn’t have to make an order and my OC’s legal rep said it was done to protect my balcony, even though it makes thing worse. No that it’s spluttering and banging, I don’t want them doing it all over again.

10. The adjudicator didn’t say anything about that particularly if it was oc property or my neighbours but accepted that it was installed to provide service to another unit saying there was no evidence to suggest that it could only be installed on my balcony, but allowed it to stay there. I think that was some sort of legal way to say to me that I didn’t provide an ‘alternative’ place or report to confirm it could and should be located elsewhere. A report like that would have been expensive.

I agree the Adjudicator appeared lazy and this was clearly wrong, and when I asked for the decision to be published they told me they wouldn’t as it was not the kind of decision the NSW public would find useful. I disagreed, but then again I found it very disrespectful of my rights, but being the wronged person here I may be biased.

One thing was I called a Strata Lawyer in Balmain who told me not to appeal as the tribunal wouldn’t change its mind even though they were clearly wrong. She asked me instead to take it to court for about $40,000 which we couldn’t spare. I guess the end result was our balcony area was effectively stolen with nothing we could do.

My biggest gripe with the whole thing is that it cost me in the end through my levies! I’ll look for the original decision for you and scan it in, sorry I can’t provide much else but that’s exactly how it happened and I assume it’s happened that way in other schemes around NSW. I seen a similar decision in VCAT which protected the owner of the land (Strata Title) but NCAT seem completely unfair in comparison and chose to ignore case law precedents I included, under my wife’s advise.

I’m thinking of selling and that’s the reason it worries me now as when the property will be shown might be affected by tradies on my balcony or spluttering and banging from a lack of maintenance… Which I have had it looked at with mine as part of our 6 months check up. My air guy says its a cheaper non-compliant version of mine and it was overused in comparison.

Thanks for your responses guys, am off to bring my dog for his morning walk. Sunday is always a fun morning with the Kings Cross stragglers home!

[isydowner]

Thanks Whale, it was well over a year ago now… so probably a little late but your advice makes perfect sense.

What about the original CTTT decision… does that not encourage them to sue me if I deprive a lot owner of ‘clean air’ or something?

My concern was selling the property encumbered with something that should not be there… how can I explain to a prospective buyer that someone else’s air-conditioning unit is on my balcony? It is screwed into the ground and balcony wall (inside) so it’s not visible to passers-by, but now seems to be falling apart and making loud banging noises… a bit like Chitty-chitty bang-bang!

I will write a letter to my neighbour as you advise, but don’t think they own the air conditioner as it’s not ‘within’ their lot property. I can send a copy to the Strata Manager (delegated as Secretary) for the attension of the Owners Corporation and add a condition for 7 days and see what happens.

I’ll get back to you next week once that’s all done. The Owners Corporation did install it but I was more disturbed it was all done while we were at work. It was more alarming that a Tradie went on someone else’s property without permission too!

I plan on upgrading my dog to a more vicious one in the future too!

Thanks Whale for your help; fingers crossed it works or gets the desired result… I don’t want to waste any more time with the Tribunal as they didn’t even consider the implications of leaving it on my balcony.

[isydowner]

The oc claimed the equipment belongs to another lot owner, but they (oc) arranged the installation when I was out! Sect 62 was only mentioned as a reason to allow it to stay on my balcony as it was the only place (private property) it could be located.

I argued that it was an unauthorised upgrade paid for by the oc, which was not required until now (scheme was registered in 2002).

The works were approved by the ex-commies (by paper, unsure what this meant) who ordered the works to be carried out to my balcony (during work hours) without a resolution at a general meeting or my permission.

The CTTT adjudicator said written permission was not needed under Sect 62 or Sect 65 to enter onto and install the equipment as it was part of the ocs maintenance requirements. I let it go as the CTTT seemed to be more interested in not making an order to relocate it, but lately it has been acting up with leaking, loud banging noises. The dog was also burned by it a few times, as well as my wife’s friend who sometimes smokes out there (terrible habit)!

I spoke to a neighbour / other owner who argued that I costed them money to install it in the first place… I am lucky they said! I do need to get it all cleared up before I sell though, it might devalue my property considerably!

[isydowner]

Always assumed you had a legal background Whale!

Basically, my OC arranged to have a neighbours air conditioner unit installed on my balcony whilst My wife and I were at work without so much as a mention in the meeting minutes. This rusted on member claimed there was no where else to put the equipment, including the balcony of the unit it was serving being my direct neighbour, and that they had an obligation as per the Thoo decision.

The Adjudicator sided with my OCs legal representative who claimed it was a s62 issue regarding maintaining common property but nothing was broken!?!

Either way, it was plain to see that if you told an NCAT member the sky is purple a certain ammount of times, they’ll agree! Although this occurred just before CTTT became NCAT.

If you were in my position what would you have ‘argued’ as it seems an impossible breach of s62 is enough to enter onto someone’s balcony while they are out and build away. I’m suprised my dog just let them build away too!

My scheme is in Paddington, but we have an onsite caretaker who sleeps at the front door all day and who would give complete strangers access. I don’t blame him, but rather the EC mber who arranged access between balconies… innocent tradies could have fallen to their death if anything went wrong!!

[isydowner]

Hi Whale,

Similarly my OC built on my private property without any written consent or statutory approval claiming it was a previous owner. What would you advise I do? I have used a Strata Lawyer in the past, but all they could recommend is NCAT and their processes appear to be easily taken advantage of!

If you’re in NSW and wish to take on my case for court, please pm me?

[Author]

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