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Put the word “allegedly” before “defamed”, “subject to” and “negligent” and you will get a sense of why using strata funds to pursue legal action is unlikely to be permitted.
For a start, even if the allegations are true, it doesn’t sound like anyone has broken strata laws or by-laws. The recent defamation case in Manly was taken by the chair of a building, acting as an individual, against a resident.
The chair took the financial risk of legal action and he reaped the rewards. Even if you persuaded the committee to finance legal action, the other party could argue that this was an inapproriate use of strata funds.
The only possible exception I can think of is where an individual accused the committee of acting illegally or immorally and those accusations damaged the strata scheme as a whole. But strata committee member A defaming strata committee member B is likely to be seen as a matter for those two members … unless the strata committee decides to publicly take sides through its meeting minutes or other communications with residents.
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Basically, only if it’s approved in advance by the committee or the owners corp at a general meeting.
If they acted alone in seeking the legal advice, they could request costs be awarded in a subsequent action but that probably wouldn’t fly at NCAT.
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Thanks you, Colonel Schultz. That’s a very interesting case (even though it doesn’t really set any legal precedent, it shows the way NCAT Members might think).
You can access the full Tribunal Decision HERE. I reckon if Laldy shows it to her strata committee, they might fold – and they would be well -advised to do so.
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It’s complicated, as you have already seen from Section 50 of the Act.
But Under S50 (6)(a) the strata manager is supposed to give the OC notice three months before the original contract has expired, and (under (b)) one month’s notice if they are in a contract that has already been renewed (I think …).
They can continue in their role for a further three months after it has expired, if approved by the strata committee when the OC hasn’t either renewed the contract or told them that they will not be renewing (provided that doesn’t go past the date of the AGM)
Oh, and the OC has to give the SM a month’s notice that they won’t be renewing if they have already given an extension.
Like I said, it’s complicated – and I may have misinterpreted an unecessarily complicated part of the legislation.
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Strata committees are obliged to enforce the by-laws of the building when they are found to be in breach – a fact that was pointed out to me by then Fair Trading minister Victor Dominello, who referred to his citing of “duty of care” in his second reading of the current Act.
If they refuse to do so, you can initiate proceedings under a Section 232 (2) request for orders from NCAT, starting with the obligatory application for mediation at Fair Trading (a process that’s free of charge).
Fair Trading mediators won’t adjudicate – that’s not why they are there – but if you don’t get a written undertaken to take remedial action by a specfic date, you should consider moving ahead with the application to NCAT.
If you want to put a scare into the committee, you could suggest that since they got legal advice at the owners’ expense, and then chose to ignore it, you will also apply for costs to be awarded against the individual committee members due to their misuse of ownewrs corp funds.
I don’t know if that will fly, but it will probably get their attention.
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Colonel Schultz said:
It seems odd that this owner has to resort to doing strata searches to find out what repairs are being done though.
You still have to see the correspondence and for that you have to pay a fee to view the records held by the strata manager.
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I don’t think impersonating a committee member is a crime, or even an offence under strata law, unless he is doing it for financial gain.
However, there could be a strong argument that this is a form of harassment against all the residents of the building and you might consider seeking an Apprehended Personal Violence Order.
At the very least, it would be worth talking to your local police about them having a word, and telling the ex-committee member to pull his head in.
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You have kind of explained the buiding manager’s dilemma in your question.
Unlike the strata manager, the building manager may not have right of access to owners’ and residents’ details, especially not email addresses. So what is he or she supposed to do if you need to be made aware of something that’s happening in a building, especially in an emergency, and neither the strata manager nor the secretary are on hand to provide a conduit.
It always perplexes me when people get shirty about unwanted emails from neighbours being an “invasion of privacy”.
Where’s the invasion? If you get an email from someone and you don’t want contacting you, flag them as “spam” and you’ll never see them again unless you go looking for them.
Too little communication is a much bigger problem in strata than too much.
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HarbourView said;
We are not able to get terms and conditions until it is signed.
It’s a sticking point but it’s not as if they are being asked to sign the contract sight unseen. I really don’t see the problem, here. Sure the insurance firm is being cautious, but that seems to be because of previous claims. Some strata schemes use their insurances as a renovation fund, others as their “no-cost” guarantors against litigation.
What is the potential down-side for the committee member … unless they have been sued in the past, which would be unfortunate if there had been no case to answer.
Get them to resign from the committee, sign up for the insurance, then bring them back on later, if it’s an issue.
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No one is “forcing” anyone to do anything. It’s transactional. A car hire firm can’t force you to sign a document saying you will take responsibility for damage – they just refuse to rent you a car if you don’t.
It sounds like this block has been flagged as high risk due to previous claims so the insurance comany is saying if any committee members won’t sign, they won’t insure.
And if one committee member refuses to sign, the others are entitled to do whatever is required to get the insurance that the law requires them to hold.
Is the hold-out committee member trying to get insurance from another source? I would guess not.
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“Body Corporate”? Are you in Queensland? There are different rules for removal of committee members there.
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Kaindub said:
It’s unlikely a bylaw transferring Windows to owner property would be legal or upheld by NCAT unless all owners agreed. That means all 4 owners , not just the usual 75%, would have to agree to the bylaw.
This point has been made at least four times already. This kind of arrangement is not common but neither is it unusual. If four owners all want the same outcome, then there’s no obstacle.
If the windows of the affected lot owners are in a state of disrepair, then they must be fixed. That’s the obligation of the OC.
This point has also been made already.
If there are insufficient funds, then a special levy needs to be raised. It’s no defence of the OC to claim lack of money.
Which would mean the people who want to fix their windows taking the others to NCAT to force them to pay for something they don’t want. Terrific stuff for community spirit in a block of four!
But it seems to me that two owners want the Windows replaced largely on aesthetic grounds. In that case the owners can pay for it themselves.
Where does it say or imply “largely aesthetic grounds”? The original poster only refers to repairs. Also, you are aguing against yourself. As you say, the windows are common property, so the owners who want them fixed can’t just go ahead and do it at their own expense without risking a breach notice aor having to “unfix” them down the track.
A bylaw may not be necessary, if the OC decides to own and maintain the Windows in the future. The other owners and the OC are getting replacement windows at no cost, putting off a cost of the future. And if the Windows are installed correctly, the maintenance in the medium term will be less than if they were not replaced.
Eh??? The owners corp already owns the windows. What you seem to be saying is that the “Fixers” can go ahead and repair the windows at their own expense and the OC will then take over the future maintenance. OK, and the only legally binding instrument for doing that is a special resolution by-law. They can’t just agree at a general meeting (well, they can but it would have no legal standing).
Also, when the other flats get round to fixing their windows, what’s to prevent the “Waiters” from saying, “hey our windows are common property so you need to contribute”. Again, avoiding that would require a unanimous special resolution by-law as described in my previous post.
The owners paying for the Windows may feel aggrieved in the future if the other Windows are replaced by the OC at the OC cost.
Well they would, wouldn’t they! That’s why you need a legally binding instrument like a unanimous special resolution under which each owner agrees to take over the repair and maintenance of their own windows. And if one owner doesn’t wwant to do that, then no one can.
Final word. An owner does not own the common property. An owner may be dissatisfied with the style, colour or aesthetic of the common property but one bought into the strata on an “as it is” basis. To expect that the common property can be changed to suit their tastes is folly.
Yes, but a 75 percent vote at a meeting can decide to change the look of common property, and people can be persuaded; you don’t have to accept the status quo.
And I’ll decide the “Final word”, thanks.
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Immediately call an EGM with one item on the agenda: “Removal of non-compliant committee member.”
At the EGM, the votes of 75 per cent of those attending, in person or by proxy, can remove the member from the committee.
Under Section 35 (1)(e):
An elected member of a strata committee vacates office as a member … if the owners corporation, in accordance with a special resolution, determines that the person’s office as a member is vacated.
Immediately hold a committee meeting afterwards to bring in a new committee member who has already agreed to sign the document (this is by co-option by the committee, not full election).
I’m guessing the the prospect of being publicly kicked off the committee may nudge the recalcitrant member towards signing if he or she is able to do so.
By the way, I have never before heard of this being a condition for getting insurance but I can’t say it surprises me.
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In your circumstances, a special resolution by-law may be the best way forward, but you’d have to include certain provisions.
1. That ALL owners agreed and signed up to it.
2. That this would apply to the lots into the future, regardless of the terms of sale of a property.
3. That the owners would agree to keep the windows in good repair, both visually and physically.
4. That individual owners would not change or replace the windows without the prior agreement of the other lot owners – this is to maintain uniformity of appearance. Fashions in window designs (especially prefabricated windows) change as different materials are used. You don’t want the the face of your building to look cock-eyed from outside.
Now, having said that, you’re probably going to need a lawyer to draft your by-law and that’s another expense. Sooner or later you are going to have to raid the biscuit tin and it might be worth working out what the total costs per unit are going to be in the various scenarios, then sitting down and talking it through.
In the worst case, you might end up taking yourselves to NCAT to force a special levy, and you want to avoid that if you possibly can.
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