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Obviously, there has been a breach and, even more obviously, this has been complicated by the fact that the people normally tasked with dealing with this kind of thing are the culprits.
Now, this is in no way to be taken as legal advice, but this is what I would do in your shoes.
First, I would apply for mediation at Fair Trading, making it clear that my intention was to have the common property restored under section 132 of the Act (rectification where work done by the owner) and section 151 (owners not to interfere with support, shelter or supply). I would also pursue them under section 232 (resolution of a dispute) and section 238 (removal of committee members).
At this point, you might think that speaking to a strata lawyer might be a good idea – and that is also exactly what I would do.
At mediation, I would explain to these morons that you intend to go all the way, force them to restore the wall, remove them from the committee and have costs awarded against them.
Then the choice is theirs – fight and lose or don’t fight and lose. Either way, they are going to lose, but one is less expensive than the other.
Personally, I would not accept anything less than that triple-whammy. If you don’t wish to talk to a lawyer, at least speak to our sponsors StrataAnswers.
This seems like an open and shut case … which is why the miscreants will probably fight it every inch of the way.
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As a final discussion point, if every location where (say ) a tradie worked was considered a workplace, then every footpath, road, park, etc etc would be a workplace and the respective owner would have to provide a “safe” workplace. That is not the case because the footpath or park is not a place of business.
You had me convinced up until that part. A strata scheme is different from a footpath because it has an owner. And I am now not sure that you’re right about the workplace. If a strata scheme employs someone to do work, then they are an “employer”, regardless of whether the person involved in a claim might be directly employed by the owners corproation or not.
The literature I can find online, such as this page (from our former sponsors Makinson d’Apice), seems to suggest that if the building has any permanent employees, then it is a workplace for the purposes of the WHS legislation. So, if I am reading this correctly, if you have an onsite caretaker or concierge, employed by the strata scheme, the whole building is a workplace.
I am happy to be proved wrong if someone can come up with a definitive answer. However comparing strata schemes to footpaths doesn’t convince me of very much at all.
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Hiya, in Qld the Form 1 is a bylaw breach notice as per the standard govt form and given direct or via the cimmittee to serve.
When you say “delivered direct” do you mean the strata manager can send it, or the caretaker, or any ordinary owner (which sounds unlikely, but what do I know).
In any case, I would imagine that if you wanted this to go via the committee, they would have to have a meeting and that would be minuted somewhere.
Also, don’t you have to wait for the residents to respond to a Form 1 (or not) before you can send a Form 10?
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Generally, strata schemes are not considered to be workplaces. ( yes people work from home in the building, and contractors work on the building, but under legislation, that does not class a strata building as a workplace).
I believe that if someone is working on your building that is a workplace. That’s why you have to make sure that any tradie working on your block has their own insurance. And it’s the reason you have to put up warning notices if your block is covered by CCTV.
I may be wrong and you refer to “legislation”. For the sake of clarification, what laws are you referring to?
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What are these Form 10s and Form 1s of which you speak?
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So to answer your questions
Yes
Yes.
We introduced the “quote” option so Flatchatters could reproduce the section of the posts to which they were referring, rather than having people scrolling up and down to work out what you were saying “yes” to. It’s easy to use. You just cut out the bits to which you aren’t specifically referring and then reset your answer in normal type (Not quote).
You can even break quotes up with answers for each part. It’s pretty simple and makes it a lot easier for people to know what you are responding to.
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I had a dig around the Interweb and found this web page on safety anchor points which says this:
The frequency of testing and inspection varies from state to state. Most states prescribe a minimum 6 monthly inspection through their WHS regulations, but a few are 12 monthly.
I have no idea of how current or valid that is but that point of view is out there.
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Adopt a set of standing orders that include the line “alcohol may not be consumed until all agenda items have been considered the meeting is declared closed.” Have the Standing Orders agreed as a by-law at your next AGM.
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… where the Strata Committee is about to pass a resolution to engage an engineer to do the work in his fee proposal, would it be acceptable for the secretary to instruct the Strata Manager that the secretary and solicitor for the Owners Corporation only will be dealing with the engineer?
Yes, and the strata manager should be instructed to make this condition of the contract. If they engage with any other owners without written approval, the contract could be torn up.
Also including that the father and daughter are to provide access only to the common property, nothing more?
Rather than single out the dynamic duo, send out a reminder to all owners that they are required by Section 122 of the strata Act to permit access to common property for the purposes of inspections of and/or repairs to common property. A maximum penalty of $550 can be imposed for obstructing the owners corporation or its agents from legitimate access.
I am assuming Jimmy T’s suggested motion is a blanket one, covering all engagements of tradespeople going forward.
You can make the motion as broad or far-reaching as you wish. However, it’s better to make it as general as possible, to avoid the miscreants claiming they are being unfairly targetted.
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Must be similar to a Catch 22 situation.
Nah, in defence of Joseph Heller’s original concept, a Catch-22 situation would be where there was a rule that anyone who asked a question would be denied an answer because they’d had the temerity to ask a question.
If you recall, in Catch-22 airmen who applied to be repatriated on grounds of insanity were refused because asking to go home was a perfectly sane thing to do.
What you’ve describe is the Dance of the Too-Hard Baskets (aka “Ask Your Mother/Father”).
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It could be leeway given due to the pandemic, it could be the routine NCAT incompetence, a combination of both or something else neither of us have thought about.
I’m picking door three.
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Normally, for a by-law that will only benefit one owner, they will pay the full fare on this. But if this is the first by-law of many identical subsequent by-laws, the owners corp really should carry a lot of the burden since everyone is going to benefit one way or the other.
By the way, if you didn’t agree in writing to pay the lawyer’s bill, I would tell them to stick it.
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There can be a change of mind but not a change of vote.
If a committee member thinks they’ve made a terrible mistake at a meeting, there are processes whereby, if they can garner enough support from other owners or committee members, they can call another meeting and try to get a majority of owners to vote differently.
Even if they voted in error, they have to live with it.
I am reminded of a friend’s mother who wanted to change her vote on single-sex marriage because she had voted “Yes” thinking it meant “Yes – I don’t want gay marriage”.
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I’m not going to offer you advice either way but you might want to read the attached extracts from the NSW Defamation Act (below).
Also, even before you get to what looks like the considerable protections offered by Tribunal proceedings, discussions at strata committee level carry qualified privilege, as the strata chairman who sued a tenant for defamation discovered when he lost on appeal and had to pay costs.
DEFAMATION ACT 2005 – SECT 27
Defence of absolute privilege
(1) It is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege.
(2) Without limiting subsection (1), matter is published on an occasion of absolute privilege if–
(b) the matter is published in the course of the proceedings of an Australian court or Australian tribunal, including (but not limited to)–
(i) the publication of matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal (including any originating process), and
(ii) the publication of matter while giving evidence before the court or tribunal, and
(iii) the publication of matter in any judgment, order or other determination of the court or tribunal, or
(d) the matter is published by a person or body in any circumstances specified in Schedule 1.
Schedule 1 – Additional publications to which absolute privilege applies
33 Matters arising under Civil and Administrative Tribunal Act 2013
Without limiting section 27 (2) (a)-(c), matter that is published to or by the Civil and Administrative Tribunal under the Civil and Administrative Tribunal Act 2013 (including matter that is published by that Tribunal in an official report of a decision of that Tribunal or of the reasons of that Tribunal for a decision).
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This is exactly the discussion we’re having in this week’s podcast.
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