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You need to decide what it is that you are complaining about. Is it the strata manager acting unprofessionally? Strata managers come under the Stock, Property and Managers Regulations, and your starting point for action against them would be THIS PAGE. However, if you simply want the situation resolved, you have to pursue mediation against the owners corporation (see below).
Regarding the other issues, do you want the Tribunal (NCAT) to order the Owners Corporation or Executive Committee to do something that it has failed to do which is part of its responsibilities? In that case you can seek orders under Section 138 (see below).
Do you want NCAT to order the Owners Corporation to take action on the unapproved renovations? In that case you can seek orders under Section 140 (see below).
Do you want NCAT to order the Owners Corporation to provide documents that you are entitled to view? In that case you can seek orders under Section 156 (see below).
However your first step in all of these approaches to NCAT would be the mandatory mediation at Fair Trading where the committee and the strata manager would have the opportunity to discuss the issues in the hope of removing the need for orders. You can read all about mediation on THIS PAGE. You would apply for mediation using THIS FORM.
If mediation fails to resolve any or all of the issues, you can then (and only then) apply for NCAT orders using THIS FORM.
Generally speaking, however, if you present a clear set of requests to your committee and make it clear that you intend to take it further if they don’t comply – and that you know how to do so – they usually will start providing answers and getting their house in order. It currently costs $81 to apply for mediation and $97 for an individual to apply for NCAT orders (but, in both cases, only $5 if you hold a valid concessions card).
138 General power of Adjudicator to make orders to settle disputes or rectify complaints
(1) An Adjudicator may make an order to settle a dispute or complaint about:
(a) an exercise of, or a failure to exercise, a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme, or
(b) the operation, administration or management of a strata scheme under this Act.
(2) For the purposes of subsection (1), an owners corporation or building management committee is taken to have failed to exercise a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
(3) An Adjudicator may not make an order under subsection (1) for the settlement of a dispute or complaint:
(a) dealt with in another section of this Chapter, or
(b) referred to the Tribunal or only within the jurisdiction of the Tribunal, or
(c) relating to the exercise, or the failure to exercise, a function conferred on an owners corporation by this Act or the by-laws if that function may be exercised only in accordance with a unanimous resolution or a special resolution (other than a special resolution under section 62 (3), 65A or 65B), or
(d) that includes the payment by a person to another person of damages.
(4) If a dispute or complaint arises from or relates to the operation or application of a provision of a lease of a lot, or of the common property, in a leasehold strata scheme, the lessor of the strata scheme must not:
(a) commence other proceedings in connection with the settlement of the dispute or complaint after having made an application under this section for the settlement of the dispute or complaint, or
(b) make an application under this section for the settlement of the dispute or complaint after having commenced other proceedings in connection with the settlement of the dispute or complaint.
(5) An application for an order under this section may be made only by an interested person.
140 Order relating to alterations and repairs to common property and other property
(1) An Adjudicator may order an owners corporation to consent to work proposed to be carried out by an owner if the Adjudicator considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:
(a) alterations to common property directly affecting the owner’s lot,
(b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.
(2) An Adjudicator may make an order approving of alterations or repairs already made by an owner to common property or any other property of an owners corporation directly affecting the owner’s lot if the Adjudicator considers that the owners corporation unreasonably refused its consent to the alteration or repairs.
(3) An order under subsection (2) is taken to be the consent of the owners corporation to the alterations or repairs concerned and may be expressed as having effect from a day specified in the order that occurred before the order was made.
(4) An Adjudicator may specify in an order under this section whether the owners corporation or the owner of the lot concerned has the ongoing responsibility for the repair and maintenance of any additional property arising out of an alteration or repair to common property approved under the order.
(5) If an order makes provision for the owner of a lot to have the ongoing responsibility for the repair and maintenance of any such additional property, the order also has effect in relation to any subsequent owner of the lot.
(6) In deciding whether to grant an order under subsection (2) or to provide for the order to have effect from a day that occurred before the date of the order, an Adjudicator may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the alterations or repairs.
(7) An application for an order under this section may be made only by a lessor of a leasehold strata scheme or an owner
156 Order to supply information or documents
(1) An Adjudicator may order an owners corporation, strata managing agent or office holder of an executive committee to supply to the applicant for the order information that the Adjudicator considers that the owners corporation, strata managing agent or office holder has wrongfully withheld from the applicant and to which the applicant is entitled under this Act.
(2) An Adjudicator may order an owners corporation, strata managing agent or office holder of an executive committee to supply or make available to the applicant for the order a record or document if:
(a) the Adjudicator considers that the owners corporation, strata managing agent or office holder has wrongfully failed to make the record or document available for inspection by the applicant or the applicant’s agent, and
(b) the applicant is entitled under this Act to inspect the record or document.
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@mikobrand96 said:
Can someone please explain how a strata manager and owners corp can get away with the fact the at several meetings owners were not financial but according to strata records they were?Strata law requires people voting at general meetings to be “financial” but you have to apply to NCAT for orders to have any votes taken at the meeting overturned.
If you feel the strata manager has acted illegally, you need to raise the issue with Fair Trading.
To answer the question of “how can they get away with it?”, it’s because no one has challenged the behaviour through the correct channels
can someone explain to me how when 1 owner’s cheques bounced and states this fact in bank statements but not in other financial records?
If you are saying that cheque bounced but the non-payment of levies (presumably) was not recorded, then there is a fault in your strata manager’s accounting system. If the levies were overdue as a result, a mandatory penalty interest should have been imposed.
Can someone tell me how a person allegedly has a proxy but no proof of this can sign a agency agreement?
If the proxy holder lied, this is a potentially fraudulent act and the agreement could be challenged in court or at NCAT.
How about the fact that when you send to dept of fair trading a complaint to investigate further, you are told there is nothing wrong as they can see.
Fair Trading will not investigate problems on your behalf; they have neither the resources not the inclination to do so. However, if you have a legitimate grievance covered by the strata Act (or other relevant laws) there are procedures you can follow. Don’t just make a complaint, fill in the forms and demand a hearing.
Fair Trading and NCAT are more interested in whether someone – an owner or tenant – has suffered in some way than they are in finding fault with someone on principle.
Who suffered in this case and by how much? If it’s just a case of your EC and strata managers playing fast and loose with the rules, then join the club. You’d be hard pressed to find any strata scheme in Australia that’s 100 percent compliant with the laws.
If, however, someone has acted fraudulently and someone has benefitted significantly to someone else’s detriment, than that is another matter entirely.
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I love it when people threaten to take you to Fair trading. What do they think will happen then? The StrataKops will guard their unit while they tear it apart.
Your owner needs planning approval from council and a set of special resolution by-laws from you before he does anything else. If he is not prepared to provide these, then don’t even bother with Fair Trading. Apply to NCAT for an interim order to stop the work.
If this owner is as ignorant of basic strata laws and procedures as he seems, then I wouldn’t hold out much hope when the work is done, the bathroom leaks and the walls sag. Even worse if he “flips” the unit, the responsibility for alterations to common property will fall back on the owners corp.
Talk to an experienced strata lawyer ASAP.
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Have a look at your by-laws and see if there is something there that you can use – maybe something about disturbing the peaceful enjoyment of the lot or dumping rubbish on common property. If there isn’t one, draw one up.
Then tell them that the committee has had enough of their behaviour but ask them to come to a mediation – your local Community Justice Centre will organise that – to thrash out their grievances once and for all.
If they refuse, tell them that if they continure their bad behaviour, you are going to start responding in kind.
If they still behave childishly, start hitting them with every breach notice you can think of. Set up a cheap security camera to catch them in the act.
A few $220 fines should focus their minds a little.
A few years ago I recommended the use of a matchstick and superglue in a repeat offender’s lock. Of course, now that I am a responsible strata citizen I could never possibly suggest such a thing for the lock on their letterbox … even if it did work.
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@PeterC said:
Does it take 75% for owners generally to force a general meeting in NSW? In the ACT, a petition from 25% of owners stating the matter to be decided can be presented to the EC …Same applies in NSW but you can only sack an EC member from the committee (or have a mid-term election of a new committee) with a special resolution at the general meeting and that requires the approval of 75 percent of those voting. Hence my reference to 75 percent.
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OK, let’s make it clear up fron that you were in the wrong by making major changes to common property without the permission of the owners corp and a special resolution by-law stating the grounds on which that permission was given.
This sounds very much like a new executive committee in a scheme that hasn’t previously bothered with by-laws suddenly realising they should have them and they should be enforced.
The Owners Corp can’t just order you to reinstate the window and then send builders in to do it if you refuse. They would have to pursue you to the Tribunal (NCAT) and ask them to issue an order to that effect. I would think that NCAT could be very sympathetic to your case and might well order all the windows to be either reinstated or brought under a by-law.
So I would make it clear to your executive committee that if they want to open that can of worms, it is up to them. But if they take you to NCAT you will ask the tribunal to issue similar orders to all other owners who have changed their windows in this way.
A much better solution would be for the Owners Corp to create one by-law that agreed restrospectively to the changes and allowed all owners who have made this change to to accept responsibility for the maintenance of the new doors. If the EC doesn’t do that, they are laying traps for future owners corps who will have to pay for the maintenance of the windows once the people who changed them have sold up and moved on.
This should be seen as an opportunity to get a standard by-law for all in place, not just picking on you because someone (quite rightly) has decided that changes to common property walls and windows shouldn’t be decided on a nod and a wink.
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I think the real problem here is that a rusted-on chairman is acting autocratically without even consulting owners on what they want.The long term solution is to get rid of the chair, which can be easier than you might think – a simple majority vote of the executive committee can remove him from office (but not from the EC).
As a temporary measure, why not get everyone who wants a remote control gate opener to sign a letter saying that, as members of the owners corporation, you require him to reinstate the RCs and give him seven days to do so.
If he refuses, or fails, start the process to either get the EC to vote him out of office or, if he has only his cronies on the EC, to hold an EGM to sack the entire EC and vote in a new one. That is harder than it sounds as it would require a 75 percent vote.
In fact, the easiest way might be to keep your powder dry until the next AGM when you will only require a 50 percent vote to elect a new executive committee.
In the meantime, be prepared to be pilloried and generally demonised, so keep the other RC owners informed and onside. But sooner or later, all dictators end up in a bunker, wondering why everyone hates them.
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You can apply for a ruling at NCAT to have any or all of the motions passed at the meeting declared invalid under section 153 on the grounds that “the provisions of this Act have not been complied with in relation to the meeting.” You would seem to have ample evidence that this was the case.
You say there is no EC. So it would seem that the powers of the EC have been delegated to the strata manager (not unusual although there is usually a committee formed, even if they don’t do anything).
This is what the Act says
16 Owners corporation to appoint executive committee
(1) An owners corporation must appoint an executive committee of the owners corporation in accordance with this Division.
and …
(4) If there is no executive committee of an owners corporation, the strata scheme must be administered by the owners corporation, but nothing in this subsection prevents a strata managing agent appointed under this Act from exercising any functions conferred on the agent.
Basically, if you want to get control of the building back in the hands of the owners, you need to set up a committee (membership can be as few as one but no more than nine).
You will need to get the strata manager to call a general meeting and make sure you have enough votes, in person or by proxy, to establish a quorum which is 25 percent of owners or 25 percent of unit entitlements.
You will need an agenda that includes establishing the number of seats on the committee and then the election of the committee if there are more nominees than there are vacancies.
Once you have done that, your committee has the power to intruct the strata manager and demand all the documents that you feel are not being made available. You would also do well to take SCA-NSW’s free online course for executive committees.
Meanwhile, have a look at section 17 of the Act to see how that might apply if your strata manager doesn’t assist with setting up the general meeting.
17 What happens if executive committee is not appointed?
(1) An Adjudicator may, on application, make an order appointing a person nominated by the applicant (and who has consented to that nomination) to convene a meeting of the owners corporation if no executive committee of the owners corporation exists after the first annual general meeting.
(2) The meeting is to be convened and held within such time as is specified in the order.
(3) A meeting held under this section is, for the purpose of the election of an executive committee, taken to be the first annual general meeting of the owners corporation.
(4) An order made under this section may include such ancillary or consequential provisions as the Adjudicator thinks fit.
(5) If an order made under this section so provides:
(a) the person appointed to convene a meeting of an owners corporation by the order is to preside at the meeting and, while the person so presides, is taken to be the chairperson of the owners corporation, and
(b) notice of that meeting may be given in the manner specified in the order.
(6) An application under this section may be made only by an owner, mortgagee or covenant chargee of a lot in the relevant strata scheme.
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The chair can rule a motion out of order if they consider “the motion, if carried, would conflict with [the] Act or the by-laws or would otherwise be unlawful or unenforceable …”
Anyone entitled to speak at the meeting could move that they motion be ruled out of order, and I would think a lack of clarity would be one valid reason.
A motion that was not clear in its intent or effect would be reasonably considered to be unenforceable since it would be open to different interpretations.
Other reasons for ruling motions out of order include that they had been proposed by someone who was not entitled to vote, for instance because they were not an owner or their levies weren’t paid up to date.
Or that it was contrary to strata law – e.g. requiring a special resolution but not having stated that on the agenda.
Even if the chair doesn’t rule the motion out of order, requesting that they do puts down a marker for any future action at NCAT to have the motion rescinded.
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@Austman said:
I’d still like to know what law(s) would apply.If one of our residents did turn the power off to another resident (and I’d hope they never would) , could and would the police take any action or would they see it as a domestic civil matter and leave it to the OC to solve?
Firstly, as we live in the age of the too-hard basket, I am 99 percent sure the police would do nothing (nor should they).
An awful lot of strata law is “untested” in higher courts so anyone who embarked on litigation would be entering unknown territory.
First the party person would have to show the power was turned off deliberately (easily done when the emergency electrician turns up and charges them triple time – about $1,000 – for the callout).
Then they would have to prove who did it. The building manager (who may have a key)? A strata committee member (who probably doesn’t)? A resident professional electrician? They apparently carry a master key that opens all power board rooms.
If they could prove it was the committee who either did it or told someone to do it, they might have a case for compensation on the bill from the emergency call-out. But if everyone involved said nothing, I can’t see that getting very far.
You can buy lock-picking equipment on the internet and watch Youtube clips on how to use it, so it could be anybody in the building. And let’s not forget who the real victims are here.
It’s probable that someone, somewhere is breaking some law when they open a power board cupboard and switch off the power to a unit without permission.
However, as we often say here, the are no StrataKops coming round to take you away – if there were there would be no problems with parties in the first place.
In strata, as in the rest of our society, there are people who define right and wrong by what they think they can get away with. So it may not be entirely legal but it’s surely fair to impose the same dubious morality on them.
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So was it an EC meeting or a general meeting, as Whale highlighted in his post?
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Just to expand on Whale’s comment, this would have to be backed up by a by-laws for it too have any authority. So what exactly does the by-law say?
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I would think this would come under the general heading of “interfering with the peaceful enjoyment of the lot” which should be somewhere in your by-laws.
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I think we have to make a distinction between minutes that are inaccurate and comments in the minutes that are untrue.
For instance, if someone said at a meeting “the people in unit 12 are from Mars” and that was recorded in the minutes, the minutes would be accurate even if the statement was factually incorrect.
The issue here seems to be that Supersally feels she and her partner were maligned, misrepresented and traduced at the AGM.
Given that these minutes will be on the record for another year before they can be corrected (if then), and i thought the misrepresentation merited serious action, I would be tempted to propose a motion for the next executive committee meeting that the position of chair be declared vacant and that a new chairman or chairwoman be elected.
I would then present a correction of the offending section of the minutes in supporting material, to be placed on the record, as part of the reasoning for the removal of the chair. I would also seek permission to speak at the meeting.
If the chair refuses to allow the motion and, more significantly, to record the supporting material, you can then pursue the EC through Fair Trading and NCAT for a failure to perform their statutory duties. They don’t have to remove her from office but they do have to at least put it to a vote.
Of course, the Chair could put the motion to the meeting and make sure it is knocked over (another loss for Supersally). However, not properly recording the details of the motion puts the EC on very shaky ground.
One final thought: This is not going to make life in your community any easier. I would only do this if I felt there was no other way to correct the impression given of me given in the records. Talk this through with a member of the committee who is more sympathetic and see if there is a compromise that won’t lead to World War III.
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Wouldn’t it be easier just to write back that the notice arrived after the work had been done and you want it recorded as such.
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