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We asked our neighbour to go 50/50 but they suggested 1/13th part of the cost as there is 1 of them and 12 of us (Flats). Since then; stagnation.
Another way to look at this is that there are 12 of you to share the cost of lawyers and only one of them. Ask them how they like them apples.
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Does my win in obtaining 2 Orders (minor common property repair matters) exclude me from any costs up to date.
Let’s look at what section 104 of the Act says:
An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose. In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.
So there you have it. The owners corp must raise a special levy to pay its legal expenses and you must be excluded from that levy.
The OC will doubtless argue that it substantially or partially won the case, and only needs to exclude you from a proportion of the costs covering the issues it lost, so one key aspect of Section 104 is the phrase “cannot pay any part of its costs and expenses”.
What does that mean? Section 104 doesn’t come up all that often in Tribunal cases and when it does, it tends to be a side issue and a bit murky.
In this case, for instance, the Appeals Board doesn’t consider 104 to be relevant because the Owners Corp hadn’t yet paid for legal advice from its admin fund, in contravention of S104. However, it leaves open the possibility of a future challenge if it did.
This other case at the Appeals Panel also spells out that any breach of Section 104 has to be challenged once the breach has occurred (in my non-legal opinion). According to that ruling, the Tribunal has no power to order the OC to comply with Section 104 but it does have the power to enforce it if it’s breached.
Now, I have to stress that his is my own, non-legal opinion. Just reading the two cases cited, it’s clear that the arguments are pretty complicated and arcane and open to wide interpretation.
You need professional legal advice if you are going to pursue this and you then need to ask yourself if it’s worth it in the end.
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I’d doubt you would survive a challenge … the way around it might be to keep it off the books and simply ask owners for a cash contribution … should they choose to contribute.
I agree … but wouldn’t it be better to see if anyone is going to challenge it and, if so, activate plan B, as you describe above? No one will be going to jail over a well-intentioned error.
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I just need NCAT to fully support the Act.
Can you tell us roughly what part of the Act that NCAT isn’t enforcing?
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1.How do I prove “not fair and equitable”, “against the weight of evidence”, ” a miscarriage of justice” without “rehashing” (wording of Member)?
You almost certainly need a lawyer. If you genuinely can’t afford one, then contact MLC.org.au/strata
2.How do I avoid Costs being claimed against me by OC?
Costs are supposed to be awarded in NCAT cases only in exceptional circumstances (read this guideline). These special conditions are:
a) A party has conducted their case in a way that unnecessarily disadvantages another party
b) A party has been responsible for unreasonably making the case take longer
c) The relative strength of a party’s case or whether the case was hopeless
d) The nature and complexity of the case
e) A party’s case was frivolous, vexatious or misconceived
f) A party has not cooperated with the Tribunal in providing a just, quick and cheap resolution of the real issues in dispute
g) A party has not followed Tribunal orders or directions
h) Any other matter the Tribunal thinks is relevant.Apart from (h) which is pretty much imponderable, just make sure you don’t fall into any of the above categories. Also, if you win, the OC has to raise a special levy, that excludes you, to pay their costs. But first you have to win.
3. What points of Law should I be aware of. I’m just using the Act.
There’s the Act – actually three Acts: Strata Management, Regulations and Development – and then there are legal interpretations and precedents. And then there’s the fact that Tribunal members just don’t like overturning previous verdicts if they don’t have to.
I would not advise anyone to try to run their own case on appeal without specialised legal advice. You’d be taking a butter knife to a gunfight. Unless you can get a strata lawyer to take the case on a contingency basis (unlikely), you’d be taking quite a gamble.
Can anyone help?
My advice would be to maybe let this one go through to the keeper then go for the low-hanging fruit among your (presumably) many complaints. Pick them off one by one and that way you can build a case that the scheme is dysfunctional. But that’s just my opinion and I am not a lawyer.
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Has something else gone on here, that you haven’t mentioned?
Either way, this bully needs to pull his head in. He can’t deny you access to common property, his by-law shouldn’t even be registered (if your strata manager is even barely competent) as it is harsh and discriminatory and unconscionable.
And you don’t have to put up with this. I wouldn’t even start with the various infractions of strata law. Apply to NCAT for the statutory appointment of a strata manager to take over all the duties and responsibilities of the committee and officebearers for the next two years on the grounds that the scheme is dysfunctional.
At the same time apply for a personal AVO on the grounds of racial and personal abuse and threats of violence, and ask that this knuckle-dragger be forbidden from talking to you or your partner or even discussing your conflict with neighbours.
Nibbling around the edges never works with these psychos although I can guarantee that even if you get a statutory manager and AVO, which will bring some relief for the next year or so, he will come back bad as ever when their time runs out.
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Vigilante space marking isn’t going to do it, clearly. You really need to get Consumer Affairs Victoria and if necessary VCAT involved to order the owners corp to paint the spaces according to the original strata plan.
There are, believe it or not, Australian standard minimum space requirements for car parking, so you will that to back you up too.
The minimum is 2.5 metres wide (or more depending on the clearance of the driveway). Have a look at this handy guide from a council in Sydney.
If the strata manager has advised the owners corp incorrectly, they should pay for the repainting of the lines.
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Maybe check your strata insurance documents too, to see what’s covered under oc insurance, you could possibly claim the cost that way too
I doubt if this is an insurable event. It’s maintenance work but the fact that the committee didn’t have the decency to warn residents it was happening suggests they don’t give a damn.
With that in mind, you can’t wait for them to approve a payment. Get alternative lodgings at a reasonable cost and hit them with the bill.
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It used to be that the owners corp had to fix and repaint any damage done while it was repairing a fault or flaw in common property, but they didn’t have to fix damage caused by the flaw. I know … I know … It is illogical and confusing and probably why it is no longer spelled out in the “Who’s responsible …?” document.
I think it will be covered by your building insurance and if the OC won’t claim, then go directly to the insurer.
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Firstly, you will have six months to get this done, so son’t panic.
Secondly, SCA (NSW) has published a very helpful toolkit, which you can access HERE.
That toolkit has a link to this NSW government website which has … not a lot about the Hub, really, except a notice to say that something is coming. Worth hanging on to that link though, and you can get put on a mailing list for future updates.
To answer your questions:
Do I need permission of all owners? Permission of the committee? Do we need to have a meeting and vote first?
The committee needs to appoint someone to fill in the forms. Just get them to agree it’s you, although it could be done by your strata manager (for a price).
Also we don’t have official office bearers, as all roles are delegated to our strata manager. Will we need to officially appoint someone as Chair or Secretary to be able to fill in that part?
Yes. You still need a chair and secretary and they will need to provide contact details to the Hub, but either or both roles could be your strata manager, if you have formally elected them to those roles at a committee meeting.
Just remember, the committee is the boss of the strata manager, not the other way round, and you can resume those roles at any point via a majority vote at a committee meeting.
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This is one of the ongoing debates on this forum – do strata committees and strata managers with delegated powers have a responsibility to enforce their blocks’ by-laws.
My view is that they do but it’s not presumptive – they won’t get into trouble for not doing it.
However, owners can take the committee to NCAT on a Section 232 complaint for failure to fulfil their responsibilities, and that can lead to Tribunal Orders – and they will get into trouble for ignoring them
Or you personally can just take a complaint against your neighbours about the specific by-law breaches to Fair Trading for mediation, and then to NCAT for orders.
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I have to disagree with Flame Tree
I think if your residence has been rendered uninhabitable by work done by the Owners Corporation, then you are entitled to compensation. Send them bill for your alternative digs. Take them to the tribunal or a small claims court if they refuse to pay. This is not a police matter but there’s no reason why you should have to pay for something that benefits the whole building.
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Until the original owner’s or developer’s holding drops below 50 percent of the units (unit entitlements, actually), their vote is reduced to one-third of their current holding. In this case , they’d have a vote of 7.
Also, they are not permitted to vote on whther or not to investigate defects or appoint a surveyor to do so.
You’d do well to acquaint yourself with Sections 14 and 15 of Schedule 1 of the Strata Schemes Management Act 2015.
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The title on the above should read: Owners Corporation receiving commissions.
The “Owners Corproation Manager” in Victoria is what’s called the strata manager in other states. I can’t see how the Owners Corporation (that’s you and all your fellow owners) could receive commissions since you (they) are paying the bills.
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Your explanation, up to 300 words per item, should be able to be included with the meeting notice and thus no additional postage costs to the owner proposing items for the agenda.
Absolutely correct. Cut back your points to the 300 words permitted by the legislationand resubmit. Put your other arguments on a Facebook page or suchlike and give readers of your document the URLs. Apart from anything else, most owners won’t read a three-page document anyway.
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