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@ktluu78 said:
If the strata manager is authorised to apply for a penalty and proceeds with the penalty application, are we required to be accessible in the time leading up to or present at the Tribunal?
Check with your SM but if you can provide written confirmation that the NTC has been breached, I think it is a paper adjudication so you will not be required to be there.
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@ktluu78 said:
We have decided to pursue for a penalty to be imposed on the tenant as our first and immediate action. However, we do have a couple of questions.
We undestand from reading the SSMA Act that the pursuit of a penalty comes under section 203 of the act, which readsCivil penalties for contravention of notice of owners corporation
(1) The Tribunal may, on application by an owners corporation, by order require a person to pay a pecuniary penalty of an amount of up to 5 penalty units if the Tribunal is satisfied that:
You do realise that only the Owners Corp (or EC or perhaps strata manager) can apply for penalties to be imposed? That is your first hurdle so the sooner you place a motion before your EC, the better.
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@Stumped said:
I was told at last month’s EC Meeting that a motion would be put to the Owners Corp at an EGM scheduled for the end of this month to apply a special levy so that the Owners Corp could sue me personally in the Supreme Court. This is due to my attempts to convey to Lot Owners what’s going on within our Strata via a website. I didn’t make a single statement; I simply collected information available on the web plus added documents that have already been circulated within the Strata – documents from the CTTT, EC Members etc – and popped all of this on the site. My ‘opponents’ claim this is all defamatory.I’m not a lawyer, let alone a defamation lawyer, but having been involved on the periphery of a defamation case in a strata scheme, I can tell you this much: Discussion and the passage of information within the owners of a scheme attracts a level of “qualified privilege” which allows for the free exchange of information and opinions. Your mistake may have been if you made the website publicly available.
Elements that diminish qualified privilege include publication to a wider audience (ie people who are not members of the owners corporation) and malice. Truth is a partial defence against defamation claims and i think a corporation may have to prove actual malicious intent if they were to claim damages.
It’s at this point that I feel I should stop writing and suggest you consult a defamation lawyer.
However, if I were in your shoes I would be making sure that every owner in the building knew that their money – and potentially substantial mounts of it – were about to be wasted on a quixotic attempt to silence concerned owners. The chances of them winning, and getting enough in damages to cover their costs, are debatable.
But one group is guaranteed to benefit – the lawyers who are hired by the EC.
Wait until the agenda is published and then hit all the owners in the building with a letter telling them why they need to reject the motion. FYI: In the case to which I refer, an owner spent upwards of $300,000 pursuing a claim that he had been defamed. The case was allowed to proceed because there were enough elements in place that defamation was possible. However, he lost the case and all costs were awarded to the EC. That’s the threat of which your fellow owners should be aware.
What you are confronting sounds like corporate bullying of the worst kind and the best way to deal with bullies is to stand up to them.
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@Stumped said:
Now: what about my renovations? The other things are too, too debilitating.This has already been answered by Whale (Post No 3). The basic ruling on changes to the structure of your apartment that impact on common property is section 116:
116Owners, occupiers and other persons not to interfere with structure of lot or services to lot
(1) An owner, mortgagee or covenant chargee in possession (whether in person or not), lessee or occupier of a lot must not do anything or permit anything to be done on or in relation to that lot so that:
(a) any support or shelter provided by that lot for another lot or common property is interfered with, or
(b) the passage or provision of water, sewage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil and other services (including telephone, radio and television services) through or by means of any pipes, wires, cables or ducts for the time being in the lot is interfered with.
(2) The owner of a lot must not alter the structure of the lot without giving to the owners corporation, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration.
NB: If you’re not interfering with any of those things listed above, in the absence of any by-laws to the contrary, all you have to do is give the Owners Corp 14 days notice.
However, any reasonably well-run building will have its own by-laws restricting the kind of work that can be done and under what circumstance, the hours of work, disposal of rubbish, use of lifts etc or, at the very least, a by-law that says something like “subject to the written permission of the EC”.
Look at your by-laws and that’s where you will find the answer.
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@scotlandx said:
No, they don’t. They rely entirely on the written submissions. I don’t think making a sound decision is a priority for some of them.Scotty is right. The adjudicators look only at the material they are given, meaning your claim is often a test of whether or not you have done your homework properly, rather than if you have a valid case.
There is some talk of NCAT providing claimant “advocates” to make sure that everyone has provided all the documents they need. They are alos supposed to start preselecting cases that will probably go to tribunal anyway, because the losing party is almost certain to appeal, thereby cutting out an unnecessary step.
I am yet to encounter any evidence that any of this is actually happening but it would have to be better than the box-ticking process that occurs at present.
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@Austman said:
“BLUFF” I meant (I still have no edit option whne I post)
Your edit option expires when someone has read your post. It’s either that or have people respond to a post that has been changed when they weren’t looking. If you have a change you want to make but have missed the boat, send it anyway and I can fix it.
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@Stumped said:
Communication with the Strata Manager/Building Management Staff is now banned – everything has to go directly to the lawyer/his Firm.
You can communicate with anyone you like, but they can choose whether or not to communicate with you.
I’m curious about you being ordered to communicate with the legal firm. From what I hear, some lawyers will charge like wounded bulls for opening a birthday card and sending a thank-you note. So who’s paying the bills for this?
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@Boronia said:
I took “laundry on the balcony” in the context of breaching by-laws to mean having their washing out to dry there.Now it seems it was a laundry accessed from the balcony (so I feel slightly less stupid than I din when I first read Boronia’s email).
ktluu78 said:
All EC members have told us ‘it’s the strata manager’s job, not ours’. Also, the kids excuse appears to start gaining some sympathy from other neighbours.
Someone needs to explain to the EC members that the strata manager can only do as the EC instructs them (unless they have delegated powers). The EC needs to tell the strata manager to pursue a penalty for breaching the Notice To Comply.
We have kept a ‘record’ book of the noise events for the last 6 months but we feel it’s still our words against theirs.
Yes, but a six-month record iod a lot of words over a long period. It has substantial value.
So far we have managed to get ..letters from neighbours … and 1 complaint letter from someone in the building next door, who hears the screaming and shouting. All these letters state the noise is disturbing, disruptive and unpleasant. Would these be sufficient evidence to prove to the tribunal member that they make excessive noise.
It depends a lot on the NCAT member, but if you present your evidence in a reasonable manner, they should be considered.
Would the Tribunal be buying the ‘kids will run and scream’ excuse?
No. The law says you mustn’t disturb the peaceful enjoyment of another person’s lot. It doesn’t say you have to put up with the noise from badly parented kids whose parents like timber floors..
I have tried to record the noise for more irrefutable evidence with my phone and my camera but it didnt pick up this noise very well. Anyone knows what recording device would piick this low frequency noise up?
Don’t waste your time. However, it might be worth telling your neighbours that you are recording the noise as you must do (that is, yo must inform them) in case their conversations are overheard. Privacy laws in NSW mean you have to tell people when you are recording their conversations (not, as many people think, that you need their permission to do so).
In any case, telling them that you are recording them may be better than actually doing it. I would say, at a guess, it might make things better rather than worse. Adif they ask, tell them that you are using Yamaha POCKETRAK 2G Pocket Stereo Recorder which my friends in the spying business tell me is the BUSINESS.
We did speak with the local police about the issue and asked if they would assist. Their response was they would. But we havent called them because i feel it might look excessive to call police to deal with the ‘so called ‘kids noise’. Has anyone got any experience with calling the police on this kind of noise?
The police will attend any excessive noise after 10pm on week nights and after midnight on weekends and holidays (if they aren’t too busy chasing real criminals). Excessive noise includes loud conversations, musing, thumping of floors or shouting. They can issue Noise Abatement Notices which can lead to on the spot fines if they are called back awithin three months (I think). Most importantly, their reports can be used in cases at NCAT.
If we press for a penalty on them, how do we proceed with this action?
I have already answered this in considerable detail in my previous post.
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Or you could seek an interim order to disallow any general meetings util the strata management issue has been resolved.
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@DaveB said:
There are some matters you have raised which are quite interesting, including the laundry on the balcony. Does that contravene another by-law?It sounds like you are in a very badly managed building where people are pretty much allowed to do as they please. Balconies are noise amplifiers and any building that allows laundries on its balconies is run by idiots. By the way, when you say you have raised this with “the Strata” who do you mean? The executive committee, the strata manager or the building manager?
I would ask why the Notice To Comply has not been followed up by an application for a penalty.
Assuming you are an owner, you need to take matters into your own hands and raise an action at the CTTT to prevent their disruption of your right to the peaceful enjoyment of your home.
Having tried the softly-softly approach, I think it’s time you went for the jugular. Hit the tenants and their landlords with everything you’ve got – balcony laundry, noise, flooring … whatever you can think of. You aren’t being heard any more – time to get their attention.
Check your buildings by-laws and see where all the breaches are occurring – that’s the place to start.
You should also raise the question of laundries on balconies. Again, check your by-laws for what is and what isn’t allowed on balconies.
It sounds very much like the owner of the apartment has put down hard flooring so this is another potential angle of attack.
And I would send a letter to the rental agent reminding them that they and the landlords are legally responsible for the actions of their tenants and if the problem isn’t resolved, you will be taking them to NCAT (NSW Civil Administration Tribunal) and, if necessary, to the District Court for a Noise Abatement Order.
You can get the ball rolling by applying for mediation at Fair Trading on this form. Mediation is a mandatory first step before most issues can be pursued at NCAT (formerly the CTTT).
You will find a detailed description on how to purse an action at NCAT here.
Good luck.
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@Bush View said:
Hi Jim, We are in a block of 60 units and there is one building representative. This rep is besieged constantly by owners/renters of things to be done/complaints about common grounds specially parking etc etc. at all hours of the day as soon as he is just about to go out or knock on the door when he is about to sit down for dinner! quite stressful and annoying for a volunteer job !!Do you know how best to handle this.. perhaps a twitter or Facebook account ?
The problem with a Facebook or Twitter account is that it has to be monitored constantly or left open (which leads to all sorts of issues of liability if someone is defamed.)
I also heard recently of a website based system – a bit like this forum – where one owner became abusive, another owner responded and both got even worse when they were asked to tone it down, so much so that they had to shut the website down.
If I were setting up a system it would be an open monitored forum (like this, but simpler) which was password protected and monitored maybe once a day. All communications would be flicked directly to the strata manager while only those fit for human consumption would appear on the website.
It still requires someone to monitor it but at least they can choose WHEN to deal with it, unlike a phone call or knock on the door which demands immediate attention.
If you wanted to get really clever, you’d include pro forma complaint forms so that at least you ‘d get the basic information (who, what, where, when and why).
Or you could look at this.
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@Kangaroo said:
I’m also sick of volunteer ECs being disparaged … the majority are doing a a reasonably good job of meeting their responsibilities under the Act, plus helping their neighbours (not a responsibility under the Act) for completely unselfish reasons. The selfish people are actually the owners who never volunteer for the EC, never attend meetings, and expect someone else to handle all the dramas.I don’t disagree with the last part of your comment but the EC in this issue has decided to do nothing. Not our problem, they say. I would be the last person to disparage all ECs but I am sick of people who scramble to get on the EC to protect their own interests then whinge if anyone asks them to take some responsibility.
Of course that’s not all EC members – it may even be a minority – but we are talking about a particular building where the EC said, “not our problem … you are on your own, buddy.”
They have set the ground rules. Pmayes has been told to sort it out himself. So he can, in my view, change the game by moving the car on to common property and then quickly occupying the space with another vehicle.
I would not be saying this if the EC had said they would take even the most basic steps to find out who the owner is – which is a hell of a lot easier for them to do than it is for an individual.
But THIS EC has chosen to do nothing. And if that’s how they want to play it, let them understand that there are consequences to inaction, just as there are to wrong actions.
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Kangaroo said
Gotta go … I have to drag my bag of garbage out to the landing, share it with all in my SP, you know … and let someone else take it to the garbage bin.
Very droll. The thing is, the EC has access to information and communications that the individual owner doesn’t have. The EC can also instruct the strata manager to perform basic functions, like writing to people. The EC can also set the tone for a building by helping people who are being treated unfairly and hammering the perpetrators.
In this case, the EC has chosen to wash its hands and do nothing when they could, for instance, have sent an email out to all owners (something the individual owner can’t do) telling whoever owns it to move the car.
So the EC has broken the contract of cooperation that should exist in strata buildings. The problem is dropped in the too-hard basket and it’s every man for himself. If that’s their attitude, then stuff them.
My view, if you don’t want to make your community a better place, then you are on the EC for your own selfish reasons. Please, no more about poor volunteers – they only have to say no when they call for nomionations at the AGM – and if they don’t want to help their neighbours then that’s exactly what they should do.
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I have just remembered a case like this in a building in which I used to live where a tenant told a friend he could park his car in the block’s garage while he (the car owner) was away in Europe for six months.
The EC ran around in circles trying to find out who was responsible and I think it was only when a notice was sent to all residents saying that if the car wasn’t removed within seven days that “action would be taken to dispose of it”.
It wasn’t exactly an empty threat but there was nothing they could legally have done. There was no comeback on either the tenant or his mate because the former hadn’t breached any by-laws and the latter didn’t come under by-laws.
It strikes me that it would solve a lot of problems in strata if everyone who sets foot in or drove into a strata building was told that they either accepted they were subject to strata by-laws … or they could leave.
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