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Let me guess – your scheme is run by grumpy old men and women who have nothing better to do with their time than make rules that have no impact on them. Am I right?
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I am not a lawyer, but I’m not sure if this Appeals Board decision actually covers the issue. The question of costs in this case relates to breaches of by-laws and the fact that the by-law deemed them to be levies (over which there are strict rules and limitations).
In your case (I think) the by-law proposes that owners indemnify the OC against costs accrued during the pursuit of Tribunal action against them.
I am more persuaded by the NCAT guide to the award of costs, which basically retains the power of the Tribunal to decide if costs should be awarded, to whom and by how much.
If anyone wants to get into the weeds on this, I think it’s also worth reading this document which addresses the legal and moral bases for awarding costs in civil matters.
While it starts with the principle of “loser pays” this is far from rigid and allows, for instance, for plaintiffs to run apparently valid cases which they then lose, and for both parties to then pay their own costs (one of the founding principles of NCAT).
You chairman needs to nip this in the bud, in case it leads to another lengthy and expensive Tribunal case, which is purportedly what they are trying to avoid.
Apart from all that, Kaindub is right in that there are process involved in the settlement of strata purchases which can involve the purchaser being made aware of any outstanding debts and taking on those debts while the amount is deducted from the purchase price. In other words, whoever owed the debt in the first place still has to pay it, one way or another.
So that clause in the proposed by-law is entirely redundant and should be seen for what it is – an attempt to bully owners with the fear that it may become more difficult to sell their property.
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We were told by the Strata Managers that they have to take their instructions from the committee, this appears to leave owners powerless.
Not exactly powerless – make sure that committee member is never elected again, or is even kicked off the committee by a general meeting.
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I would think it might focus their attention to table a question at the next committee meeting asking why they are approving non compliant flooring, and if they intend to spend owners corporation money defending their decisions if and when other owners complain about noise transmission.
Having said that, as Kaindub suggests, the key here isn’t the by-law but the level of noise transmission.
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Kaindub
I have sent you a personal message to change whatever it it in your system that means your posts appear twice. You clearly haven’t received it. Please fix this as it’s bloody annoying to have to through the deletion process, which is not as simple as it sounds.
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The Strata Manager will not provide a list of contact addresses for owners citing privacy issues but then won’t pass anything on.
The Privacy Act doesn’t cover the vast majority of strata schemes so any claims of privacy are BS. Strata law says owners are entitled to see any records held on behalf of the owners corporation, regardless of whether the committee, the strata manager or the owners want them to.
This includes the strata roll which should include the addresses of owners and residents (who are breaching strata law if they don’t register them).
If the strata manager uses email to communicate with strata owners you are entitled to see their email list. If they say the email list belongs to them (the latest way sneaky strata managers are avoiding owners communicating with each other) you are entitled to see all the communications they have made by email which will obviously include email addresses.
What do you do next? Tell the strata managers that they are acting illegally in denying you access to strata information and if they don’t stop it, you will be reporting them to Fair Trading and the SCA.
And do a search on this website for any other posts and articles on email addresses.
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How many lifts are in the building and do they service all units on all floors? I ask because of this paragraph:
On Monday 24th of January a mechanic appeared without any prior communication to fix the lift. On the day this occurred service was also required on the main lift. Had this not been the case it appears our lift would still be unrepaired.
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If you can provide documentation showing that a costs by-law has already been rejected by the Tribunal, you might send a letter to the chairman, copied to the strata manager and the rest for the committee along these lines:
I call on the chair to rule motion xx out of order under the powers granted to them by Section 19 of Schedule 1 of the Strata Schemes Management Act which says:
“The chairperson at a meeting may rule a motion out of order if … the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable.”
Attempts to pre-assign costs have already been proved to be invalid by NCAT which reserves the right to apportion costs, and then only under very specific circumstances.
As a result, this by-law would have no “force or effect” and to pass it would be a waste of owners corporation funds in registering the by-law then having to defend it at the Tribunal where it would inevitably be challenged and in all likelihood rescinded.
The chairman and strata manager should advise the owners accordingly or explain, on the record, why they are prepared to allow this waste of time and money to proceed.
If the Chairman feels unable to remove the by-law, please add this submission to the record of this meeting when the by-law is debated.
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It is interesting that it is rather true a SP can have a raft of unenforceable by-laws on their books when we often see in NCAT matters applicant’s claiming they bought in because of some particular by-law. People rely on the integrity of by-laws but it seems there is no obligation for those by-laws to have any integrity.
I too laboured for many years under the misapprehension that a by-law could not be registered if it was invalid. I would amend that “could” to “should”, as there is nothing to stop a bad by-law being registered, although debating, registering and ultimately defending it at the tribunal is a waste of considerable amounts of time and money.
The Act is very clear on this. Section 136(2), Matters by-laws can provide for, says this:
A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.
In other words, register as many invalid by-laws as you like but don’t be surprised if, when you try to enforce them, an owner or tenant challenges them, and the Tribunal bounces them, saying they don’t have any “force or effect” because they are inconsistent with strata or any other law.
And any strata manager who leads you up that particular garden path should be asked to explain why that doesn’t breach the duty of care in their code of conduct, if not in their contract.
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A few years back I was trying to fight the passing of a Recovery of Costs bylaw and would you believe no one listened to me. Since then a tribunal has made a finding on this bylaw at another strata plan deeming it invalid.
Can you supply a reference to the case where the by-law was bounced? That would not only help your case with your committee – especially the Member’s reasons for rejecting the by-law – but will be handy for future discussions here on the Forum.
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It’s certainly strange. NCAT seems to be saying we won’t invalidate the no-pets by-law because there are no actual pets involved. But if there were pets involved, then we would invalidate it.
This is pretty close to an actual Catch-22, rather then the overly used and misused versions we hear about.
Catch-22, for those who haven’t read the Joseph Heller novel or seen the movie, was that you could get out of military service due to grounds of insanity, but applying to get out of military service proves that you are sane.
In this case, the no-pets by-law stands but only if there are no pets involved, otherwise it would be invalid.
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1) it’s illegal and you won’t last adjudication,
I think the point of the discussion is, should we make it legal. But your other points are well-made. Find a way of rewarding those who work hard for the community, and discouraging those who are more interested in the reward (cash as well as influence) and you’ve got it.
Crack that one and move swiftly on to the Middle East, Ukraine and the US Congress.
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In Victoria as a landlord, I was not allowed to deny a dog in my apartment for lease.
Just to clarify, you wouldn’t have been able to deny a pet as a landlord but your building’s by-laws could have (theoretically). I’m only putting this in for other readers. Some people think that the no-pet-ban landlord rule applies to owners corps too, but it doesn’t.
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If one of the impacts was a lower premium would you still be annoyed. or is it the principle of the strata manager choosing a different policy form what was agreed on? And what would their commission on the two amounts be?
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We’ll need more on the nature of the change and the the impacts it created before anyone cam make a considered response.
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