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Mediation is an attempt to resolve a dispute by getting both parties to agree on a solution. The agreement is not binding and there is no third-party ruling. Often, however, one party or both may become aware that they are in the wrong and settlement can be achieved.
If not, turrently the next step would be an adjudication at NCAT based solely on the evidence presented on paper. After that, either party can appeal to a Tribunal sitting where they can present their case in person
After November 30, the paper adjudication will be removed and you would go straight to a hearing.
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@PeterC said:
I change my comment if there has been an adverse effect on other residents.
Peter, your comments always take a more reasonable approach. I should always add the rider to mine “will this cause more grief and hassle than it’s worth?” And that’s something only the original posters can decide.
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Apply to NCAT to have the by-laws overturned under the terms of Section 158 (1) (c) because proper procedure was not followed, inaccurate information was provided and proper compensation – as outlined in previous legal cases – was neither sought nor offered.
158 Order with respect to by-laws conferring exclusive rights or privileges over common property
(1) An Adjudicator may make an order prescribing the making, amendment or repeal, in terms of the order, of a by-law if the Adjudicator finds:
(a) on application made by an owner, that the owners corporation has unreasonably refused to make a by-law of the kind referred to in section 51, or
(b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed by-law of that kind, or to the proposed amendment or repeal of such a by-law, or
(c) on application made by any interested person, that the conditions of such a by-law relating to the maintenance or upkeep of any common property are unjust.
(2) In considering whether to make an order under this section, an Adjudicator must have regard to:
(a) the interests of all owners in the use and enjoyment of their lots and common property, and
(b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a by-law of the kind referred to in section 51.
(3) An Adjudicator must not determine an application referred to in subsection (1) (a) by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.
(4) For the purposes of subsection (1), an Adjudicator may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.
(5) An order under this section, when recorded under section 209, has effect as if its terms were a by-law (but subject to any relevant order of a superior court).
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Apply to NCAT for an Interim Order deferring the AGM until after the new laws come in because you believe the current EC is manipulating the current laws to force an advantage to one individual to make it easier for him to sell his unit, putting the other owners at a disadvantage.
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Under the new “collective sales” laws coming in at the end of the month, 75 percent of owners would be able to bring in a developer or builder in to build and sell new units to pay for the upgrade of the rest of the building.
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And get a by-law covering the use of power on common property (permission in writing, agreed payments etc etc.) Meanwhile tell the fridge person that if they don’t pay the bill, then the electrician mentioned in the previous post will be coming round to cut them off.
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I have to admit I have upset an apple cart or two by dumping a stack of motions on to the agenda just before deadline. It was tactical – I knew if I gave he chairman enough time, he would have added counter motions to scupper mine. But the strata manager wasn’t best pleased. And I lost anyway because the chairman had 50 percent of the vote in proxies.
The “other business” or “matters arising” motion would be ruled out of order in NSW although some schemes wait until the meeting is officially “closed” to discuss other issues but not take a vote.
Other schemes just bumble along and do what seems right. The problem arises when someone hasn’t had their way in the discussions and starts pulling out procedural rules to prove (quite rightly) that the decision shouldn’t have been made, even if they would have lost if it had been correctly handled.
That said,as you can see below, an adjudicator can refuse to nullify a decision that was made when correct procedure wasn’t followed if they feel that it would have made no difference if due process had been observed
However, to get to that point requires time, energy and expense. Better to follow the rules and save yourself the grief, I reckon
153 Order invalidating resolution of owners corporation
(1) An Adjudicator may make an order invalidating any resolution of, or election held by, the persons present at a meeting of an owners corporation if the Adjudicator considers that the provisions of this Act have not been complied with in relation to the meeting.
(2) An Adjudicator may refuse to make an order under this section but only if the Adjudicator considers:
(a) that the failure to comply with the provisions of this Act did not adversely affect any person, and
(b) that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution or have affected the result of the election.
(3) An application for an order under this section may be made only by an owner or first mortgagee of a lot.
154 Order where voting rights denied or due notice of item of business not given
(1) An Adjudicator may order that a resolution passed at a general meeting of an owners corporation be treated as a nullity on and from the date of the order if satisfied that the resolution would not have been passed but for the fact that the applicant for the order:
(a) was improperly denied a vote on the motion for the resolution, or
(b) was not given due notice of the item of business in relation to which the resolution was passed.
(2) An application for an order under this section may not be made after 28 days after the date of the meeting at which the resolution was passed.
(3) If an order under this section is made in relation to a resolution making a by-law or amending or repealing another by-law and the order has been recorded as provided by section 209, the by-laws have force and effect on and from the date the order is so recorded to the same extent as they would have had if the resolution had not been passed.
(4) Subsection (3) is subject to the by-laws having been or being amended or repealed in accordance with this Act and to any relevant order made by a superior court.
(5) An application for an order under this section may be made only by a person entitled to vote on the motion for the resolution concerned.
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I’m no procedural expert but section 35 (3) of the Act says that different items have to be treated as separate motions (apart from the multi-faceted motion to elect the committee) and motions can’t be accepted unless they have been notified previously in the agenda.
So even a motion to consider “matters arising” would fall foul of that. You could however include motions to consider items in the minutes that you think might require further discussion. If no one wants to say anything, just move on.
35 Forms of motions
(1) Notice of a general meeting must include, or be accompanied by:
(a) a form of motion to confirm the minutes of the last general meeting of any kind, and
(b) if the meeting has been convened to elect an executive committee for the owners corporation, a form of motion for the election of the executive committee, and
(c) except in the case of a meeting referred to in paragraph (b), a form of motion of each other motion to be considered at the meeting.
(2) The notice must clearly indicate which motions require a special resolution for their passage and which motions require a unanimous resolution for their passage.
(3) A motion must not be submitted at a general meeting unless notice of the motion has been given in accordance with this clause or the motion is a motion to amend a motion of which notice has so been given.
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The strata manager is 100 percent right.
Matters arising may be a logical and, indeed, natural progression of discussions but if a specific item is not on the agenda it shouldn’t be discussed and certainly can’t be voted on.
This is to protect the interests of owners who may not realise an issue was going to be discussed, as well as to prevent the situation where issues that are done and dusted are continually revisited by people who didn’t get the result they wanted the first time around.
If a topic is unresolved then it should be put back on the agenda afresh.
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You can’t get turkeys to vote for Christmas.
Pass a by-law that commercial properties need to be responsible for their own water usage (if you can get the 75 percent of the vote). If you can’t, go to NCAT and ask for orders along those lines.
Building managers who were absolutely ruthless might shut off the water to the salon for essential maintenance at peak times due to concerns that there must be a leak. Not that I am recommending that. But it would get their attention.
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You will need council approval and a special resolution by-law from your owners corp.
The formula, as established by the High Court is x = a – (b+c) where
x = the amount you pay the owners corp
a = the agreed estimated value of the improved apartment
b = the agreed value of the unimproved apartment
c = the agreed cost of the improvements, including plans and legalsHope that makes sense to the algebra-challenged.
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@Elives said:
I see so this is good news then!?It’s only good news if you are planning to run airbnb against the wishes of your neighbours.
But, to be honest, strata laws in Queensland are fundamentally garbage, totally skewed towards developers and their henchpersons (aka contracted caretakers) so you may as well get your snout in the trough too.
Ironically, the aforementioned caretakers will find ways – legal and otherwise – of not letting airbnb into the building if it starts affecting their rental rolls. Good luck.
NB: This forum does not support the “sharing” lie at the heart of the short-stay letting industry’s sales pitch.
Inviting paying guests into your home is fine but short-stay lets of entire apartments is not sharing – it’s leeching off the majority of residents so that a minority can make an extra buck and to hell with the consequences for anyone else.
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The “model rules” in Victoria state: A lot owner or occupier must not use the lot, or permit it to be used, so as to cause a hazard to the health, safety and security of an owner, occupier, or user of another lot.
If you don’t have that rule in your scheme then the model rule applies. You have something similar but it could use a tweak.Victoria also requires the Owners Corporation to set up a dispute resolution system, which may involve an outside mediator coming in to discuss a complaint.To trigger this, you must make a complaint in writing to the strata committee and they must respond, even if it is to say they don’t plan to pursue the matter and why.If they attempt internal dispute resolution and it fails, you can take a complaint to Consumer Affairs (see this guide, page 34).If that fails you can go to the tribunal (VCAT) and there’s more information about that here.It is very well established that passive smoking is a health hazard. Also, smoke drift has recently been defined as a “nuisance” in NSW strata.There has been a case in NSW where a district court has ordered tenants to stop smoking in their apartment because it was drifting into adjoining units and there was no physical way of stopping it.The magistrate ruled that if there was no smoke there would be no problem. The tenants moved out.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.
@madamme said:
Thanks. I didn’t think my question was that complex neither did I think Google would tell everything, hence I’m garnering wider advice.I don’t recall anyone saying your question was complicated – but then neither is “how long is a piece of string?”
You provided in an earlier post a long list of things you found on Google. If you feel the need to tick all those boxes, then go right ahead. It can’t do any harm.
I would think an equally compelling argument might be to source material from a variety of sources (yes, Google) that shows your choice of dog breed is particularly well-suited to apartment living (like the webpage here).
Actually, labradors don’t make the “best” list but they do make a “worst dog for apartments” list, albeit because they require a lot of exercise. Having said that, some dogs, like chihuahuas and Yorkies make both lists because they are small but yappy.
It is never as obvious as it seems. The size of the dog is the least of the issues. Small territorial dogs can be a nightmare for neighbours as they yap at any sound. Large dogs like Great Danes are perfect because they rarely bark and require little exercise. I love labradors and Border collies but I’m not sure I would bring either into an apartment block.
Probably your behaviour is as significant to your neighbours as your dog’s. If you are not planning to leave the dog alone all day and if you won’t be leaving it on the balcony while you are out, and are planning to use a dog walker when you aren’t there, these will all figure at least as prominently in your neighbours’ minds as the breed.
And finally, at the risk of repeating myself, the situation in your specific block is more significant than what has happened in a thousand others. Every strata scheme is a unique mixture of individuals with their own hobby horses and pet hates (one of which may be that they actually hate pets).
Elsewhere on this forum an owner who wants a dog is dealing with a neighbour who claims to have a phobia. Irresistible force, meet immovable object. In fact, a quick scroll through the “pet hates …” forum will reveal various tales of success and failure.
So forget the strata manager and talk to your neighbours or, at the very least, the strata committee members. Find out if this has been an issue in the past and, if so, how it was dealt with.
Your strata committee will decide whether or not you can have a dog (at least in the first instance). It is they whom you have to convince, no one else.
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