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@kiwipaul said:
From the Act136 Owners corporation to display and give certain notices
(1) An owners corporation given a copy of an application for an order under this Chapter accompanied by the relevant notice must …
(c) immediately serve a copy of the application and notice on each person whose name appears on its strata roll.So their dosn’t seem to be a requirement to serve it to ALL owners just those affected by the dispute.
That’s not my reading of subsection (c): “… each person whose name appears on its strata roll …” basically means all owners.
The strata manager should send out the information at the Owners Corp’s expense. This issue is related to common property and by-laws so everyone is entitled to know what’s going on. How many other owners actually read this is another matter entirely.
By the way, this is very good example of why strata schemes need to get their owners signed up to receive notices by email – it’s so much cheaper, quicker and more efficient to do this stuff electronically.
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@leif said:
Jimmy I think with no damages for not following the SSM there clearly will be less care about SSM in the future. I assume the new finding does not exclude fines that at best are miniscule in comparison to the damage done.I think many people are confusing the fact that we can no longer sue for damages for non compliance with Section 62 with not being able to take action.
The CTTT has a range of possible sanctions against Owners Corps for non compliance, ranging from fines up to $5,500 to removal of the EC and replacing the decision making process with the statutory appointment of a strata manager.
There is also the potential question of personal liability of EC members if they have deliberately blocked votes on Section 62 matters. Strata insurance only covers EC members for bona fide errors. If someone has been told they must comply with the law and deliberately refuses to do so, I think there’s a possibility that individual or individuals could find themselves facing damages claims.
I think it means significantly increase of risk of diminishing the value of each individual lot and shorten the life of the property due to no damages applicable, when not maintaining the property to the standard and functionality as present when registered as a strata plan and doing un-authorised changes.
That would be true if there were no sanctions available, but, as I explained above, there are still sanctions but the issues have to be handled at the CTTT and, if appealed, the district courts. Having witnessed at close quarters the result of one owner forcing the Owners Corp to address his unit’s defects while they were in the middle of a defects claim for the whole building (which they ultimately lost because of delays) I can only think that keeping these things at the CTTT level – for all its faults – is a good thing.
I think the SSM would work if there were any way of enforcing it as even the basics seems currently ignored.
Again, it can be enforced and it can be pursued very cheaply through the CTTT. The Act is absolutely clear – common property must be maintained and repaired and any EC that defies a CTTT order to do so will be in hot water very quickly.
I think my question is how do we ensure and find out that even the basics maintenance is implemented and owners informed today, with currently no risk of damages payable by the ones breaking even the basic rules?
Elsewhere in your post you refer to the legal obligation to have a sinking fund maintenance assessment done. There are no Strata Cops who are going to come around and check – it’s up to owners when they don’t see evidence of this having been done or pursued to challenge the EC or strata manager as to why it hasn’t happened.
In an extreme situation, you can take the Owners Corp to the CTTT and seek an order against them to comply with the AC. Have a look HERE and scroll down to the section on how to take action for a CTTT order (with links to the requisite forms). If mediation failed and you did have to seek an adjudication, it would be under section 138.
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@ccbaxter said:
I just read PMC2’s very good post on this again and renewed my curiosity as to why the two expert strata lawyers did PR releases on this. Maybe to stir things up. I really think they should put all their cards on the table here.
This is becoming tiresome. If lawyers are in the habit of issuing press releases and newsletters about their field of interest (which both Teys and Makinson d’Apice do on a regular basis), why wouldn’t they issue some sort of statement about one of the most fundamental and far reaching legal decisions we’ve had in ages?
There is no conspiracy. There is no ambulance chasing. If it hadn’t been for them telling us about it we would never have known (because the rest of the press certainly hasn’t said a peep).
Let it go – you are getting perilously close to trolling for reactions and I will not tolerate that on this website. Yellow card!
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I’m with Dave B on this. If this was passed as a by-law at an AGM, then witheer the two owners who object to it didn’t attend or didn’t vote or even voted for it.
However, if you did attend and you both voted against, then the motion fails.
And he is right about the processes. Ask them to get an estimate of how much it will cost to raise and pursue an action at the CTTT. Perhaps then they will be more amenable.
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@leif said:
… does that not mean that in any event Dr Thoo was not entitled to damages for breach of statutory duty as the duty had not been breached
Or does it mean as mostly assumed that in any event Dr Thoo was not entitled to damages for breach of statutory duty as damages are not awarded for breach of statutory duty
This is what Beverley Hoskinson-Green wrote: “a breach of statutory duty by an Owners Corporation does not give an owner or occupier a right to sue the Owners Corporation for damages.”
This what Teys Lawyers wrote: “A breach of Section 62 by an owners corporation does not give rise to an action for damages for breach of statutory duty.”
So two highly experience strata lawyers take the latter position – a breach of statutory duties under section 62 does not leave the Owners Corp open to legal action for damages.
So again, please, unless someone has a legal opinion to the contrary, can we stop arguing about the semantics and start thinking about what that means to the majority of strata owners in this state?
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No, the law has quite clearly changed in the way it is implemented – which is what really counts.
And the practice of law has never been an exact science – if it was, all lawyers would agree and there would be no court cases. That’s why we instruct lawyers but they only ever advise us.
But, please, no more on the semantics: if you have a question, ask it.
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@ccbaxter said:
.. it’s time for the bush lawyering to stop and the real lawyers who issued the PR releases to weigh in please.Weigh in on what, exactly? The facts have been spelled out several times. If you want a hypothetical situation addressed, why don’t you present one instead of making negative comments?
Saying it’s “settled law” as JimmyT puts it (whatever that means) and in quotes means Sweet Fanny Adams a ‘lawyer’ mate told me this afternoon.
“Settled law’ was a term used by Beverley Hoskinson-Green in her first release on this. It’s a commonly accepted principle which refers to an interpretation of law, usually by a superior court, creating a precedent, usually one that remains unchallenged. Since the Appeals Court is the highest in NSW, this ruling unlikely to be overturned.
The term creates a distinction between legal principles that have been tested and established by rulings in court (usually at a high level) and those that are simply on the statute book.
For instance, strata lawyers often refer to the Seiwa case in which the Appeals Court established two principles that are used on a daily basis in strata management.
One was that the membrane between the balcony slab and its tiles was common property and the other was that Section 62 of the Act imposes on an owners corporation a strict duty to maintain and repair common property.
“Strict duty” means it’s not enough to use “best efforts” or “reasonable steps”; it’s a duty to keep common property in good repair, regardless, for instance, of whether or not the owners corp has the funds on hand to do so.
Neither of these principles is spelled out in the strata Act but they are both now accepted as established precedents and are therefor ‘settled law’.
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Don’t forget that the Thoo ruling came in an appeal against a previous Supreme Court finding that the owners Corp did have to install the aircon.
The Appeals Court is a superior court to the Supreme Court and its rulings can negate previous Supeme Court decisions. The Thoo ruling is now “settled law”, as Beverley Hoskinson-Green puts it. Anything contradictory that has gone before is irrelevant.
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That is a bizarre decision although it does seem to uphold the principle of caveat emptor – buyer beware.
I reckon a smart lawyer would, on appeal, have argued that the current owner, acting in good faith, could not have known that the ceiling was non-compliant whereas the Owners Corp had a statutory duty to make sure that it was compliant.
In any case, there is no principle of precedent for CTTT rulings (although previous rulings are often considered by adjudicators as part of the broader picture).
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@nekitel said:
Is this legal/ethical for them to do this? Check the strata agreement, but it may have been better for you all to do it, as sometime the strata manager does mess things up.I think the question was whether or not it was legal or ethical for the strata manager to provide the name and address of the secretary and tell everyone to contact him/her. I doubt very much if this was illegal but it’s certainly not cricket. That is a sure sign of a communications breakdown and a petty, vindictive strata manager
- Is there any action we can take through Fair trading or industry body? I am looking for answers to this very important question.
The mighty Whale has already answered this, thus.
In NSW both the Strata Manager’s activities and the operation of their Agreement with your O/C is governed by the provisions of the Property, Stock, and Business Agents Act (2002) and by a Code of Ethics developed by their peak industry body, Strata Community Australia (national), through whom your E/C can also lodge a complaint.
But as Sealion pointed out, if they aren’t members of SCA*, there’s nothing that body can do.
You’ll find Fair Trading’s regulations on strata managers HERE and links to lodging a complaint HERE.
*If your strata manager isn’t a member of SCA, then you need to ask why? It’s like having a bus driver who doesn’t own a driving licence.
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I’m not a lawyer either but I think what the Appeals Court judge was saying was that there are other avenues available to individual owners to force Owners Corporations to abide by the terms of Section 62 – from CTTT orders to the appointment of a strata manager to replace the Owners Corp – that there is ‘relief’ available without the need to pursue damages.
In a way, this places the responsibility for the upkeep of the building back where it ought to be … with individual owners or groups of owners. If we have allowed things to get so bad that we feel we are entitled to claim damages, then we have passed the point where we, individually or collectively, should have taken to options open to us.
This particular judge may not be familiar with the workings of the CTTT and how unpredictable its adjudications can be, let alone the sometimes poisoned chalice of an appointed strata manager, but the theory is sound: why have an elaborate and long-standing system for enforcing strata law if you just ignore it?
By the way, I’m not sure that the ruling doesn’t cover the situation you describe of loss of value due to failure to maintain and repair.
However, I wonder what this means to individual members of the EC, carrying large swathes of proxy votes, who have used their voting power to consistently and knowingly ignore Section 62 requirements. If i recall correctly, the judge didn’t say anything about not seeking damages against individuals.
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I think when Austman says the BCA is low, what he means is that the actual noise reduction of insulation that’s installed to minimum BCA standards is inadequate for the realities of modern living. Someday, we can only hope, someone will come up with correlation between the thickness and density of a concrete slab and the type of materials that may be used as floor coverings. Until then it’s quite clear that floors built to minimum standards should never have anything on them except carpet and insulation.
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@ccbaxter said:
You tell me, please, Mr T. I don’t get. First, it’s a commercial thing / precedent, isn’t it? Does it mean anything to residential type stratas?
Second, won’t these lawyers stand to make money helping folks (sorry, caught that from KRudd) get things past the CTTT? I truly can’t see why these lawyers would issue PR releases unless there was something in it for them. But call me a suspicious cynic if you like but please don’t get cranky.I’m not cranky, just puzzled by your choice of words and the vehemence of your argument. I can only draw your attention to the response from PCM2 below.
Strata is strata, whether it is commercial or not. There is no Commercial Strata Schemes Management Act and this ruling was specifically about Section 62 of the SSMA.
I can’t speak for strata lawyers and why they might issue these press releases except that all the big firms – Makinson d’Apice, Teys, Grace Lawyers, Bannermans etc etc – do so directly or in regular newsletters, presumably to keep their clients informed (or at least let them know they know what’s going on).
It costs an awful lot less to get legal representation at the CTTT than at the Supreme Court and it is the latter to which the Appeals Court has closed the door. And owners can still demand that Owners Corps have ro repair and maintain common property – they just can’t insist on upgrades.
I actually think these rulings have very positive aspects to them. The one about replacing or repairing like for like means that buildings won’t be held hostage by new owners who buy into old buildings but want the latest whizzbang fit-out that they weren’t prepared to pay for in a new building.
It will also stop rich, lawyered-up bully boys skipping the CTTT by suing their Owners Corps for damages which means their cases had to be heard by the Supreme Court.
The downside is that a lot of old buildings will be stuck with the common property that they have unless 75 percent of owners can be persuaded to pay for upgrades. Given the prevailing attitude of “get out before the bills come in”, that could mean the deterioration of a lot of older buildings.
It’s not the end of the world – but there has been a significant shift in its axis.
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CC
I’m not sure what your issue is with this report.
The effect of the law has been changed meaning that there’s no point in pursuing your EC to upgrade common property OR suing them for damages for failure to maintain CP.
It sounds like the lawyers are saying this is now back to being a low-cost CTTT issue instead of a potentially lucrative Supreme Court matter. How is that ‘ambulance chasing’?
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I would have thought that some sort of artist’s impression or digitally edited photograph to show how it would appear from both outside the building and from adjoining units would be pretty much essential.
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