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I’d love to hear from the OP what the outcome from all this was. Was there a simple explanation that we missed?
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Here’s another thought – Section 90 of the strata Act establishes the potential for the tribunal to order that the owners corporation in a dispute with lot owners should pay their costs, and that the other side – individual lot owners – be excluded from the payment, for whatever reason.
In that case the strata scheme is ordered to raise a special levy to cover the costs, as paying from strata funds would effectively mean the individual lot owners in the case were contributing to the costs.
So perhaps the Tribunal decided that although the Owners Corp won the argument in terms of the law, the way they conducted the case wasn’t quite right.
Thus one party could win the legal fight but still have the costs are awarded against them and only them. Generally speaking, NCAT likes both sides in a dispute to pay their own costs. But it will award costs in “exceptional” circumstances, such as those listed here (from its own factsheet).
6. Section 60(3) of the Act explains the types of special circumstances in which the Tribunal can
decide that someone else should pay another party’s costs. They 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.7. Rule 38 allows the Tribunal to make an order for costs where:
a) The claim is more than $10,000 but no more than $30,000 and an order is made under clause 10 of Schedule 4 of the Act because a party has conducted the proceedings in a way that unreasonably disadvantaged another party in the proceedings;
b) The claim is more than $30,000.More than half of the conditions listed above could result in the “winning” side having costs awarded in a way that excluded the “losing” owners.
Either way – or for a different reason entirely – you’re entitled to a “please explain” to your strata manager.
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Apart from a requirement to wear masks on the site (and for anyone on common property) all the restrictions on building workers that existed before seem to have been swept away.
You could ask the site supervisor to make sure the workers observe social distancing. And you could limit the number of people travelling in the lift at any one time.
Interestingly, I wonder if the reasonable restrictions I suggested in my previous reply still apply, now that your OC has rejected the first application.
I would get on to that immediately and just forget about any Covid-19 rules – they don’t exist, and that means anyone, vaccinated or not, can be allowed on the site.
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CDC?
Center for Disease Control? Compact Disc Case?
Or is it Complying Development Certificate?
Strictly speaking you (and your neighbours) should have some sort of enforceable agreement (like a by-law) that responsibility for maintaining and repairing any common property that is changed should be transferred to either the person changing it, or left with the owners corporation.
What did your neighbours have in the way of permission? And who fixes it if things go wrong?
Maybe none of this is common property, in which case you should first go to your local council to check and see whether your planned changes are an exempt development or a complying development.
Those links will take you to the NSW Planning Portal where there is more detail. The following is a straight lift from the latter web page:
From 1 July 2021, all Complying Development Certificate (CDC) applications must be lodged through the NSW Planning Portal.
Complying development is a fast-track approval process for straightforward residential, commercial and industrial development. Complying development generally includes larger building works than exempt development. For this reason, ‘sign off’ by a building professional (known as a certifying authority) is needed. Provided the proposal fully meets specific development standards, it can be determined by a Council or registered certifier without the need for a full development application.
But basically, start with an inquiry at your local council and then head to the NSW Planning Portal to apply online for the certification that you need.
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There is movement. Yesterday I received this note from Sadiye Ince, General Manager of Strata Community Association (NSW) the state umbrella association for strata managers:
SCA (NSW) is aware of the need to make necessary changes to contemporise parts of the agreement to accord with the commencement of the Professional Standards Scheme and the proposed amendments to the Strata Act.
These changes will take effect once the [proposed NSW Strata] regulations have been finalised.
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Not sure if they would be defined as legal expenses.
Costs can include legitimate charges for professional advice – but not for your time spent away from work, for instance. It doesn’t have to be legal advice. The strata manager is entitled to charge for their time but if they were planning to do so they should have advised you to apply for costs at the tribunal
You need the strata manager to tell you, preferably in writing or via an email, why a special levy is required when the there are sufficient funds in the kitty. Sounds to me like somebody screwed up and there’s some backside covering afoot.
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Basically it’s not to keep annoying people at arms length. It does not cover verbal abuse. It’s designed to protect people from physical harm. Your lawyer will examine your claim and advise whether you have grounds.
I’m loath to get all bush lawyer on this but the relevant law is in Section 19 of the Crimes (Domestic and Personal Violence) Act 2007.
It says:
(1) A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears—
(b) the engagement of the other person in conduct in which the other person (i) intimidates the person … being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
(3) For the purposes of this section, conduct may amount to intimidation of a person even though … it does not involve actual or threatened violence to the person …
We might also look at section 10 of the Act which defines its purpose:10 Object of Act in relation to personal violence(1) The object of this Act in relation to personal violence is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship.
(2) This Act aims to achieve that object by—
(a) empowering courts to make apprehended personal violence orders in appropriate circumstances to protect people from violence, intimidation (including harassment) and stalking,
As I said, probably not applicable in this case but, contrary to what’s been written here, the law clearly does not require actual violence or threats of violence for an APVO to be issued.
I also note that the magistrate has the option to refer the parties to mediation – a potential outcome that hasn’t been addressed in any of these discussions (apart from a vague suggestion in an earlier post). Does that mean it never happens? And are magistrates arbitrarily applying an “actual violence” benchmark to filter out spurious and vexatious applications?
In saying all this, I am aware that there is often a gulf between the letter of the law, its intent and its implementation. And it’s that latter reality with which we have to deal.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
In my experience, the AVPO is a tool available to all lot owners. BUT it’s a very blunt tool that should be used as a last resort and only where physical violence is threatened.
I wonder about cases where people are, for instance, sending a stream of nasty letters to people. Every official article I have read about this refers to fears of violence and/or harassment. If it’s only threats or fears of violence that trigger APVOs, why doesn’t the law or the literature say that?
I admit that it’s probably inappropriate in this particular case, which is a grumpy retiree with over-sensitive hearing. But what about cases such as some that have been aired here in the past where a resident couldn’t leave her front door without her neighbour muttering obscenities at her? There’s no threat of violence but it’s definitely a form of harassment.
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Section 90 specifies that when costs are awarded by the Tribunal in a case where the individual lot owners had won, they should be raised by a special levy which excludes the winning owners.
So, did the Tribunal award costs and were they awarded against the owners corp? It doesn’t sound like that, according to your post. I would ask the strata manager on what basis you are being asked to raise a special levy.
Did they, perhaps, forget to ask for costs to be awarded against the miscreant owners and are now covering their backsides? All in all it seems strange and I wouldn’t be raising a special levy until they explain.
I have heard of cases where the winning parties in a dispute forgot to ask for costs and all costs were awarded against them and not the losing party.
If this is the case here, where a special levy is being raised to exclude payments by the losing parties, your strata manager has a bit of explaining to do and I would want to know why they expect to be paid for their work if they stuffed up.
90 Contributions for legal costs awarded in proceedings between owners and owners corporation(1) This section applies to proceedings brought by one or more owners of lots against an owners corporation or by an owners corporation against one or more owners of lots (including one or more owners joined in third party proceedings).
(2) The court may order in the proceedings that any money (including costs) payable by an owners corporation under an order made in the proceedings must be paid from contributions levied only in relation to the lots and in the proportions that are specified in the order.
(3) The owners corporation must, for the purpose of paying the money ordered to be paid by it, levy contributions in accordance with the terms of the order and must pay the money out of the contributions paid in accordance with that levy.
(4) This Division (other than provisions relating to the amount of contributions) applies to and in respect of contributions levied under this section in the same way as it applies to other contributions levied under this Division.
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An AVO is NOT warranted here. You will be up for a costs order and lots more anxiety than you are currently experiencing and you will cause unnecessary anxiety to this lady who does not deserve it. AVOs are not the knee jerk solution to problems in civil society, they were originally designed for people who fear being murdered.
This is based on what? Your personal knowledge of the case or the people involved. Should the OP put up with the harassment because the harasser may get upset if they complain? Also, I referred to an APVO – an Apprehended Personal Violence Order which is different.
Maybe AVOs were originally designed for people who feared being murdered, but the world has moved on. Let’s look at what the NSW Police website says about who can apply for an APVO:
Any person who is or has been the victim of physical assault, threats of physical harm, stalking, intimidation or harassment and has a reasonable fear to believe that this behaviour will continue.
OK, and as for costs, how does the process work? Again let’s go to the source for information:
A person over the age of 16 or a Police Officer can apply for an AVO. A person can speak to the Court Register at their local court. If the behaviour amounts to a criminal offence, you should report the matter to police, whether or not you have a relationship with the perpetrator. Police will assess your situation [and] obtain a statement if required …
So where are the crippling costs? Of course mediation is preferable, but what if the other person doesn’t want to mediate (perhaps you should look up the definition of the word before responding)?
What you describe sounds like there is inadequate insulation between floors. For example, you should have wall to wall carpet with underlay on your floor, not exposed floorboards.
So is the OP supposed to carpet her bathroom and shower?
What is required here is a circuit breaker and for the downstairs neighbour to get a clear and strong message that they can’t keep complaining about every little noise the OP makes. Alternatively, if it is a noise insulation problem, they should take it up with the owners corp.
I offered a range of potential solutions in my reply, ranging from an APVO to earplugs. Yes the APVO would be extreme but what other solution do you offer apart from “give in”?
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Why not post a photo so we can see the situation of the staircase before advising?
I can’t really see how that would help. Kaindub’s response has it covered – it’s what’s marked on the strata plan that matters.
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It may be a good starting point. Part 2 of that section says this:
(2) Order consenting to owner’s work on owners corporation property
The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, make an order (a work approval order) approving of minor renovations or alterations or repairs already made by an owner to common property or any other property of the owners corporation directly affecting the owner’s lot if the Tribunal considers that the owners corporation unreasonably refused its consent to the minor renovations or alterations or repairs.
Provided you have agreed to take responsibility for the ongoing repairs of any part of common or lot property affected by the work, you have every chance of proving the refusal to be unreasonable.
Your first step is mediation which is a mandatory precursor to action at NCAT. Don’t expect to get a result there. In fact, it may be better if the strata scheme’s rep refuses to budge as then you can move on to the next stage without being strung along by endless failed general meetings. If the decision is made internally, it still requires by-law approval at a general meeting.
Have a look at this page on the Fair Trading website then apply online via this link. And you should think about speaking to an experienced strata lawyer. It’s another expense but it could save a lot of time and hassle.
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On re-reading this, you need to get on to this immediately. I think there’s a very strong chance and your fellow owners are being conned by the developers and their cronies. This is what I would do (as a matter of urgency).
- Call Fair Trading (13 32 20) and ask for their advice.
- Call a lawyer (there are a couple of good ones at the top of this page).
- Request a mediation at Fair Trading with a view to rescinding the decisions (under section 232) (a) the operation, administration or management of a strata scheme under this Act, and (b) the appointment of a building manager.
- Apply for interim orders to halt the purchase of the strata manager’s office under section 231.
- If you need immediate assistance with this, call our sponsors StrataAnswers.
- Consider applying for the appointment of a compulsory strata manager to sort this whole mess out before the issues become embedded.
By the way, you need to take a long hard look at your defects inspections as that’s the next area where you are likely to be ripped off.
My last piece of advice – get cracking on this now!
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This stinks to high heaven. Do you need an on-site manager, for a start? And is the manager connected to the developer (they shouldn’t be)? And as for conducting the meeting in a foreign language? Wow!
Start proceedings at Fair Trading to have a mediation with a view to having all the desisions made at the AGM declared invalid at NCAT. You and your fellow owners are being ripped off and not just once – this is gouging of owners corp funds planned to continue for the next 10 years.
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WFH: Work from Home. Usage seems to have become quite common the last 2 years.
But more people have a chance of understanding it if you just type it out. JRTFI.
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