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All over NSW, villages are missing their idiots.
Can’t remember who I stole that from, but it’s a cracker!
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“Chocolate wheel” analogy is brilliant and spot on.
I was about to claim authorship, but it was first coined (in these pages, anyway) by much-missed Flatchatter Whale back in 2014.
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Fight fire with fire and email with email. let the other owners know that the correct process is not being followed and they could end up with expensive egg on their faces if they don’t do the right thing, as per this story in the SMH.
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If anyone is wondering about a strata manager assuming the duties of the strata committee where there is no such committee, the somewhat contradictory Section 29 of the NSW Act says this:
29 Owners corporation to appoint strata committee(1) An owners corporation must appoint a strata committee of the owners corporation in accordance with this Act.
And this:
(4) If there is no strata 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.
Substitute “should” for “must” in 1) and it all makes sense, otherwise, 4) assumes that 1) has been ignored – so much for the imperative.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.
I wonder what would happen if an injury was to occur.
I wonder what would happen if the strata committee was threatened with a complaint about discrimination. The Discrimination Act 1991 (ACT) covers discrimination on the basis of disability and age, in areas such as access to premises, provision of goods, services or facilities and accommodation.
You can offer them the carrot of a no-cost general meeting and the stick of a complaint to the Human Rights Commission. See what happens then.
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I refer you to my previous post HERE. It outlines (roughly) the process that must be followed legally for a collective sale to go through where there isn’t unanimity among owners. Failure to follow every step would undermine the collective sale by a majority (not all owners) as the final sale has to be approved by the Land and Environment Court.
Have a look at this document, then get legal advice from an experienced strata lawyer. And don’t forget that if you object to the sale, the owners corporation has to pay your legal fees.
Finally, take a look at this section of the Strata Schemes Development Act and ask your neighbours and strata manager why they and the developer are not following ithe procedures laid out here. Is it because they want to work around the protections offered to you and your fellow owners by the law.
Any of your neighbours who have accepted an option pre-payment should be aware that if the sale doesn’t go through, they will have to pay the money back. In other words, they will have to pay for your objections, then could end up with nothing if proper procedure has not been followed.
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If you look at the detail of the law, it says that either the committee can instigate a request for penalties, provided that decision is taken by majority vote at a properly constitute committee meeting, or the strata manager can do so provided they think a bylaw has been breached.
It may be that your strata manager wanted you to pass a motion at a committee meeting before they were prepared to act on the complaint, having not witness the breaches themselves (although that might be considered nit-picking).
Have a look at this information from Kerin Benson lawyers, which lays out the detail of how to issue a Notice To Comply.
And have a look at this information from our sponsors Bannerman Lawyers which explains the timeline for the two options – going directly to NCAT or attempting mediation.
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Seriously, people ignore APOs and APVOs on a daily basis, often resulting in tragic consequences. There are no StrataKops. No one is going to jail.
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As there is no absolute need for both parties to attend the meeting in person, facilities might be offered to allow the protected person to attend the meeting via Zoom. Since they have no absolute right to speak at the meeting, and meeting attendance via Zoom is allowed by law, their basic rights are not being impinged upon.
Regarding the second question, I am amazed to say that no, I have never come across this before.
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It says on the NTC form/NSW government website that the next action is to go to Fair Trading.
No, on the official (and only legal) form it says you take it to NCAT.
IMPORTANT INFORMATION ABOUT THIS NOTICE
3. For a Penalty: an application to the NSW Civil and Administrative Tribunal must be made within 12 months of the Notice being served (given).Now check out Page 11 (section 147) of this NCAT document. Unlike most of the other orders, seeking a penalty for a by-law breach does not require evidence of mediation.
And in fact, the Fair Trading website offers you the choice of seeking mediation or taking a by-law breach directly to NCAT.
This is what it says:
If an owner or resident continues to breach a by-law after the notice to comply is given, the owners corporation can:
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- ask for an order from the Tribunal telling the person to pay a penalty.
- apply for mediation with the resident who is breaching the by-law. If that does not resolve the issue, the owners corporation can then apply to the Tribunal for a compliance order.
Obviously in your situation you would go directly to NCAT, making sure you had a copy of the official minutes of the strata committee meeting at which it was decided to issue an NTC.
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THESE changes, in a fairly evenly balanced stratum of conflicting interests of which I’m aware, could be a formula for intermittent skirmishing via GMs. Are they really progress?
You still have to convince a majority of owners to sack the committee member. And the one-year mandatory absence should reduce back and forth “skirmishing”.
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Basically, you have until the agenda is issued to submit your motions. But then you have to allow time for compilation and printing.
The strata manager might well argue that you have had a whole year in which to scrutinise strata records so they may feel disinclined to hold up the process while you get your ducks in a row.
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There are basically two ways you can approach this, top down or bottom up. Top down, does she have council permission and does the day care centre comply with the regulations for your state (including all building codes).
Bottom up, are the kids in danger or at risk, is it disrupting the community, does she have necessary permission from her landlord (apparently not) or the owners corporation (ditto)?
The issue seems simple – either the facility is legal and safe or not. But there’s the complication that she may be providing a valuable service to local mothers.
But the landlord should be aware that they are responsible for the actions of their tenants while they are in the scheme and that has implications with which they may not be comfortable.
Bottom line, a garage is not an appropriate place for a commercial child care centre and the operator is probably in breach of her lease.
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My understanding is that, despite what the law says, NCAT members were growing so tired of having to explain the law to non-lawyers that legal representation has become the default rather than the exception.
If I were heading for the tribunal with a case against my strata committee, I would expect the other side to be represented (unless it was a case that insurance doesn’t cover).
So I would have to be 100 per cent sure of my case so that I could then claim costs on one of the very few grounds that they are awarded: probably that the other side must have known that they didn’t have a case.
To be 100 percent certain, I would probably need a lawyer’s advice anyway. So my advice would be:
- Get a lawyers’ advice
- Ask them if you have a decent chance of a) winning and b) having costs awarded.
- If either a) or b) are in significant doubt, back away.
If a) is likely but b) isn’t, at least you know that the OC can’t or shouldn’t slug you for a share of their legal expenses.
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Which state is this in?
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