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A phone call to the council should do it. The strata manager may just be reluctant to give the bad news to a committee member that they are in breach, in case they are sacked. Which, ironically, is good reason for sacking them. Call the council or email them with pictures. Then call the strata management company’s senior managers and ask them to explain the facts of strata life to their employee.
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If you are the only person likely to be affected in the future, you may have make this a personal issue. But if there are others in your position, who may be affected in the future, you may be able to get some help in establishing a pre-emptive by-law.
I would be proposing something for the next AGM, suggesting the committee establishes some criteria for the size, shape, colours and materials that future pergola could be made from.
Meanwhile, raise a complaint with the committee about the noise from and appearance of the pergola on the grounds that you mention – interfering with the peaceful enjoyment of your lot (noise from rain) – as well as the requirement for owners to maintain the appearance of lot property.
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If it’s on a balcony, it’s on common property and needs permission to be there. And how is it ducted? It has almost certainly cut through common property – either a wall or a window – and that should have been permitted via a common property by-law (which sheets responsibility for the work done to the owner).
This is pretty basic stuff and even if your strata manager isn’t a lawyer, she should know this. Also, an extra air-con compressor could be a significant drain on a small block’s power supply.
In your shoes I would send a letter to the strata committee asking how and when permission for this was granted, what work was done on common property to install it, when the necessry by-laws were registered and what the committee plans to do to rectify the situation. If they refuse to do anything, apply for mediation at Fair Trading with a view to taking action under section 232(2) failure to fulfill duties.
Oh, and I’m not a lawyer either – maybe ask your strata manager if they are aware of any of this and if not, why not.
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I agree. It won’t be the only criterion but if the abuser says the OP is a liar and a thief, then that sounds like malice, but if they say their target lied in a letter to the committee, or misappropriated strata funds, that might undermine the malice argument.
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The Court of Appeal’s decisions create legal precedent, so this is significant, as is the detail of the finding, which said, on the question of malice: “Proof of ill-will, prejudice, bias, recklessness, lack of belief in truth or some improper motive is insufficient of itself to establish that malice actuated the publication”. So forget a legal action for defamation – it’s too high a bar to cross.
That’s what I actually wrote and perhaps I should have said that I would forget defamation, because I think it’s too high a bar.
That said, the Court of Appeal – the highest court in the state – stated that proof of ill-will and lack of belief in truth is insufficient evidence that the comments were initiated due to malice. The finding also cited the fact that the emails in question referred to an issue that was relevant to the management of the strata scheme – the matter of letterbox security.
The fact that reference to such a relatively trivial matter expunged malice would be a red flag for me if I was considering rolling the dice on a defamation case. BTW, it does not surprise me one jot that defamation lawyers are encouraging potential clients to consider such action.
The real question is what the OP wants – the abuse to stop or to punish the abuser (or both). Perhaps threatening defamation action (but not taking it) might stop the abuse but the abuser is just as capable of trawling the internet for case studies as anyone else. And maybe stopping the abuse would be a punishment in itself, since the abuser is clearly getting some sort of satisfaction from their tirades.
Having witnessed a strata-related defamation action at close quarters, I can tell you that all it resulted in was distress for the defendants and a $300,000 legal bill for the plaintiff, mainly because they failed to prove malice even though one defendant had used strong language – “f*** him” – in an email. Everyone lost – except the defamation lawyers who did quite nicely, thank you very much.
IMHO the OP might do well to take the easiest route and get an APVO. Leave defamation to the likes of Donald Trump and Ben Roberts-Smith, both of whom have big bucks behind them.
You can read the Court of Appeal findings on the Manly defamation case HERE. Its decisions are far-reaching – don’t forget that it was its ruling that changed the laws on pets in apartments for the whole country.
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OK, first of all, let’s get defamation out of the way. Back in 2019 a tenant in a block in Manly sent notes to everyone in the building saying the chair of the committee was a “small-minded busybody” because he had been constantly pursuing her to lock her letterbox. A district court awarded the chairman $120,000 in defamation damages.
However, that was overturned by the NSW Court of Appeal which found that her email was protected by common law “qualified privilege” because it was sent to other residents about a matter of legitimate interest—the building’s mailbox security—and there was no evidence of malice.
The Court of Appeal’s decisions create legal precedent, so this is significant, as is the detail of the finding, which said, on the question of malice: “Proof of ill-will, prejudice, bias, recklessness, lack of belief in truth or some improper motive is insufficient of itself to establish that malice actuated the publication”.
So forget a legal action for defamation – it’s too high a bar to cross.
However, if you can show that sending out insulting, hurtful and erroneous messages to other owners is an attempt to harrass or bully you, you may be able to get an Apprehended Personal Violence Order (APVO).
An APVO is not a criminal conviction but ignoring such an Order is an offence so it may be the best way to shut the abuse down. If you want to explore that option, these websites may help
https://www.police.nsw.gov.au/safety_and_prevention/crime_ prevention/online_safety/ online_safety_accordian/ cyberbullying 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.
There’s a lot to unpack in this but it’s best to start with the simple fact that as an owner, you are jointly responsible, with all the other owners, for the maintenance and repair of common property, and you have to pay your share of the costs, proportionate to your unit entitlements (the amount by which your levies are calculated). But let’s look at the indivdual issues.A builder told us we have concrete cancer in some of our balconies and advised the cost would be $85k to $110k per balcony.
See my comment above. You will be expected to pay your calculated share of the total cost.
… our committee has employed a lawyer which has advised us we will need to take on all liabilities for the balustrades which includes future owners. We have advised we will not accept the bylaw and its liabilities.
This sounds like they are saying you need a common property by-law for your balcony if you want to not be part of the general repair. What they are asking you to do is put your money where your mouth is – if you are saying your balcony doesn’t need repair, they are saying, okay, then take responsibility for it, now and into the future.
That doesn’t sound unreasonable to me. Right now, the OC (body corporate) is responsible for all the balconies and has a legal duty to repair and maintain them. If you want to opt out, it can only be on the basis that you accept ongoing responsibility. But even that won’t remove your responsibility for your share of the repairs to the other balconies.
Someone has to be legally responsible for every part of any strata building. Strata law is structured so that if the OC gives up responsibility for a part of common property, then someone, usually that the lot owner, has to take over that responsibility.
We have now agreed to the balcony reinforcement which will mean a large loss of our balcony’s area which is already small. The engineer has recommended to build another 13cm thick wall to reinforce the existing 13cm wall.
This is worth questioning, at least to see if there is a better solution that doesn’t impact on your space. If that level of work is demonstrably not necessary, then you could get the OC to agree to take it off the work schedule – it will protect your space but only save money from the overall bill.
If a legal firm divides their invoices so that they are under $3k even though the total is $5k+ does that mean they do not need owners corporation approval.
Some strata management companies have become notorious for “creative” practices but that doesn’t mean everything their strata managers do is dubious. Also, it would cost you more to hire a lawyer to prove that there was some jiggery-pokery here than you would save from your share of the legal fees – and all the additional charges that will accrue as the OC’s lawyers ramp up their fight against you – and seek all costs as well.
Don’t forget, the dodgy lawyer’s five favourite words: “It’s a matter of principle.”
In your position, I would not waste another iota of energy or a cent of money fighting this. But I would ask the other owners if there is a compromise solution that will cost everyone less and would have less of an impact on you directly.
And I would be pressing the OC to examine the best way of financing the work – including a strata loan – so that you are not hit too hard when the bills have to be paid.
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The confidentiality issue is tricky as the AGM is not a public meeting but then everything is supposed to be minuted and that can eventually make its way into the public domain, by fair means or foul. I would say that you are pretty safe to mention this at a Tribunal – but I could be wrong.
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Does anyone know where in the relevant ACT legislation it says that permission (to take photos) is needed from the property owner (I’d like to include this reference in the request to the committee).
Firstly, the only laws that I know are federal privacy laws and even they can be vague and confusing. This article is helpful, though.
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I did make a comment under this post a few days ago not seen. Just bringing it to your attention.
Is it the one just above? Otherwise I fear it has fallen into a black hole of internet incompetence. Please resend if you have it on file.
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Thanks for the endorsement. I found this link which lays out the aftermath of the owners’ standing up to the developer in a similar case. On that occasion eight or nine years ago, the developer set things off by demanding that the handful of initial owners pay equal shares of the cost of running the building, including watering extensive landscaped grounds.
The right thing to have done would have been to have the initial AGM, agree on the budget and charge the owners according to their Unit Entitlements. One other thing that developers can’t do is to run up debts that the incoming Owners Corporation has to pay.
The best thing that could happen here is that a strata manager gets involved – but not one of those notorious ones that are more interested in their next gig with the developer than looking after the owners.
FYI: That item above is still there but some of the links from it are broken or the material has been deleted. Hey, it was nearly 10 years ago
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