Forum Replies Created
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Replies
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I have already stated the method proposed would be allow the executive to take a vote from ‘every’ member, if the one member is disruptive, then the others will out vote. Is that not the way it should work… In simple terms. As tedious as it sounds, I am sure that’s the way the legislature was formed.
Anyhow, I stand by my first comments and would never endorse any action to purposely reject an owner, even if they are disruptive. They most likely have valid concerns just like anybody else. Ganging up on them to make sure they are not represented is not a good thing… In my book, I’d rather do the right thing.
There are many cases that have been appealed to the district court from CTTT to be decided by a judge. Adjudicators don’t have to apply the law, if they choose not to. I also point out ALL of my previous cases to the district court have been judged in my favour, with costs and damages awarded. This might be the reason I condone behind the scenes actions, it’s not transparent.
It appears that having an opinion or expressing concern is not a good quality to have so ill bow out and wish you luck with this site Jimmy T.
Hi jimmy,
There are obviously two sides to this discussion. My concerns are due to the ‘Judge Judy’ style finger pointing… Can you be certain that “nugalbags” isn’t the troublemaker?
- Forward planning is fine; formation of a clique is not!
- You stated “tell the meeting that the entire EC ticket will withdraw their nomination because the EC will be totally dysfunctional otherwise” asserting a dictatorship, not a suggestion to seek “support of their co-owners”.
- You suggested doing this prior to an AGM, not “a considered and widely discussed strategy”.
- I have too many years with “disruptive members” on committees by default… “rusted on”, as cited in Mr Anthony Robert’s Strata Reforms articles. I endured meetings disrupted by the chairperson, secretary and treasurer whose actions are anything but democratic, approving expenditure without consulting the other EC members and even sanctioning spending required to be done by the Owners Corporation.
- “The open and honest way to deal with this would be for each of the people who have suffered at the hand of this person to stand up at the AGM and describe this person’s behaviour in detail”… Again, could this lead to a defamation claim.
- Hang on while I dismount… I am of the opinion committee members should only be allowed to make decisions on minor issues (colour of paint, finishes, cleaners, etc.) with everything else set out as mandatory and performed immediately by the Strata Manager (who should be held accountable) without any interference of committee members. Autocratic owners should not be allowed hold other residents to ransom, EVER! It’s not a perfect system, hence why strata reforms are currently happening.
- Dare I say you have witnessed EC penny pinchers or the members who freely disregard by-laws at the detriment of others, yet demand everyone else abide by them?
- Your argument rests on the majority being ‘correctly’ informed, who’s to say the shenanigans are not from autocratic owners wanting to dictate or rort the system?
- Strata Schemes Management Act 1996 – Sect 162, relates to the appointment of a Compulsory Strata Manager. This is hard to prove, but is an option is bad decisions or dysfunction by EC members is allowed to fester.
- I reject your ‘mischievous’ comment, it is usually the individual behaviour of committee members not doing what’s required of the act that causes Supreme Court claims. Look at your forum topis to see highlighted issues such as illegal spending, notices, breaches of duties which have all been committed by rouge Strata managers, Executive Committee Members and even Building Managers.
- In the real world of strata – with really disruptive people and real bullies –”citizens” shouldn’t have to be smarter, the laws should disincentive wrongdoing in the first place. I have had many watertight cases at CTTT, they all ended up at the District Court.
- How about Strata Cases on Austlii are for claims under negligence? Even breaches of section 62 constitute negligence when all three clauses are breached. The latest Dr Thoo case asserts this well.
Lastly, I did not attack you, I merely suggested that your advice could be construed by disruptive committee members. My opinion was that bullying someone off a committee, who we only have one person’s word that they are ‘disruptive’, can also be committed on the ‘good people’ can it not?
I believe there are many successful applications for a Compulsory Strata Management appointed by CTTT Adjudicators. The Owners – Strata Plan 5709 v Andrews [2009] NSWCA 189, Hatzvy v Grossbard and Owners Corporation SP13671 (Strata & Community Schemes) [2010] NSWCTTT 477.
If I offended you, I sincerely apologise, but I would like to reiterate I was merely suggesting that your response (well respected by Flat-Chat followers) could be used in a very bad light, and I am still of the opinion that it is more than likely a ‘bad’ element of Strata Society that would do just that.
Hi Jimmy,
I am actually very surprised by your advice because somebody on the flat-chat forum has ‘alleged’ a resident as ‘vexacious’. After everything the Hon Mr. Anthony Roberts discussed regarding proxy votes etc. I cannot applaud the inference that 1 person can “decide the number of people you want on your executive committee” by issuing a “ticket”!
This is a democratic system you are detailing but correct me if I am wrong, have you just outlined a way for somebody to control a strata scheme using a pre-meditated solution? If the vexatious resident is part of the committee, the decisions should be based on all votes, not just one person. Surely this is the fairest way to run a Strata Scheme?
I can’t help but think this method could constitute ‘fraud on the minority’ and removing an owner’s democratic rights is a serious offence well documented in the act. “Dysfunctional” and “blindsided” are words that come to mind when plotting to target one person. The Owners Corporation are in place for the good of ‘all owners’ and members should not be plotting against any minority’s!
Don’t take this as a rant, it’s far from it, but someone should stick up for the rights of Australian Citizens under common law. It is only fair is it not?
‘nugalbags’, if this resident has done anything illegal, you can apply to CTTT to have them removed as an executive committee member. I advise against plotting to remove them. It can only end up costing the Owners Corporation if you get found out… especially if a Compulsory Strata Manager is installed.
Hi Struggler,
Am sorry to see you go and just wanted to say good luck and all the best. I understand and agree with your comments about current Strata law and hope the Government do something quick to fix it.
Having gained valuable advise from your posts in the past I can honestly say you’ll be a sad loss to the forum.
All the best and I really hope you find a nice house to live in without any idiot neighbours.
Take care
Hi Whale,
I agree with you in principle, but as we all know the Law isn’t an exact science and a certain amount of discretion is required to cover every situation. I think the point Leif was making was ‘consent’ must be sought and actually ‘granted’.
I am sure there are many cases of judges deciding that trespass would have to be considered with the prime right of an Australian Citizens privacy to be upheld. I am enlightened by your experience seems to favour an OC with the right intentions, and I would support that, but having witnessed the exact opposite happening I see the very real negatives in a generalisation of s65. Has there been many successful applications of this from the point of view of an OC demanding access to a private lot? I cannot find a listed decision on the legal sites.
My point regarding the CTTT and enforcement is that it has to be applied by a jurisdictional court in order for some weight to be added to the order. An order under s65 could easily be appealed by an owner, who for whatever reason did not want the OC or their agents to enter onto their private parcel. It very readily gives rise to other issues such as fraud on the minority, nuisance ect.
Anyhow, I think this site is great as everyone’s opinion (leif, whale, JimmyT, etc.) on the subject sheds light to the different elements of each case. It would be great to have a clear black and white answer to these issues, but it’s not always as simple as that. Hopefully Newbie will allow access for the sake of improving the common property of their lot.
Hi scotlandx,
I’ve actually had this discussion with a High Court Judge and some very well established Strata Lawyers who dated the Trespass laws all the way back to Old Blighty. The reasons for my discussion with my learned colleagues does not need to be displayed on a public website, but think about it… enforcement of s65 is established by ‘being aware’ the common property is not functioning correctly. An order is for access is to ‘initiate’ repairs in breach of s62 of the act, or to ascertain the extent of the damage… but it has to be established first.
If there is no evidence and the OC want access, for whatever reason, it is not enough to satisfy an Adjudicator ‘ordering’ an owner to give access. As in ‘newbies’ response, they could access the defective common property in another manner, why should the Owner be disturbed because the OC failed to maintain the common property vested in the Scheme?
If the adjudicator ‘orders’ the owner to provide access (not consent) the OC are indemnified from this trespass, but the persons entering the property are still accountable (liability insurance is a must for these contractors).
What’s to stop an OC entering anyone’s property whenever they feel like it, or ‘plant’ evidence against owners who may have litigious action afoot? The over-riding laws, which are civil and common, are all enforceable and punishable if they are committed.
The main principle at play is ‘consent’ and even if consent is unreasonably withheld, it is expressly up to the Lot Owner as to whom and who not to allow entry onto their private property. Strata Schemes Management Act is a guideline for the Owners Corporation and many, many other ‘Acts’ are applicable that override this legislation. Look at any of the recent court cases and you will see this.
It’s worth noting that Adjudicators are not held to personal account (and rightly so) and that this is the magic of CTTT where they can find in whatever manner they wish… hence the ‘Clown Factory’ comments. The main ‘phrase’ the judge told me was that there is no legal excuse for ‘trespass’ and that the manner in which it is dealt with is applicable to what the seriousness of the trespass is. If the Owner outright refuses to offer consent, it is entirely their right to do so. But in doing so, I would expect there to be good reason as in my case it was committed flagrantly and with unconscionable disrespect.
Hi Jimmy T,
I feel I must disagree with your interpretation as Strata Law does not override Common Law. There is no lawful excuse for trespass and unless consent (written or otherwise) is given, technically a CTTT Adjudicator does not have the power or jurisdiction to override Common Law.
Simply put, an order by an Adjudicator will have to satisfy the Owner more than it would the Owners Corporation. The Owners Corporation would have to prove what part of the Act was breached, why it is necessary to enter onto the Private Parcel and ultimately reiterate a request for ‘access’ from the Owner.
If the Owner did not consent to access and the CTTT made an order, it is still trespass and the relevant legislation remains applicable.
I don’t understand the problem with allowing workers in for a fortnight to carry out works that will only improve the lot, but I have absolutely no tolerance for trespass and would request ‘Newbie’ insist this is only done at a mutally suitable time. I suggest forwarding the OC three reasonable timeframes for works to occur and just ‘get on with it’.
Hey JimmyT,
Are you aware that a $5,500 fine from CTTT is never the full amount, they normally impose 25% of that cost which in all intents and purposes is not a disincentive to do the right thing… in fact, it is more an incentive for the ‘Office Bearers’ to commit ‘fraud on the minority’ or better yet, use ‘stand-over’ tactics for issues that do not directly affect them.
There is a lot of talk about EC members being held personally accountable for actions ‘outside’ the scope of the act/regulations… does anyone actually have any concrete proof of this. I think this is equitable, but it all sounds like ‘lip service’ in an attempt to hold fraudulent committee members to account for their inactions.
Dr. Thoo’s case has single handily discharged any obligations of an Owners Corporation to even follow the act, let alone abide by the law. Surely this ruling was far too encompassing and not in anybody’s interest. We are all too aware of the horror stories of autocratic EC members neglecting or even aggravating issues within a scheme, with little else other than apply to the High Court of Australia for an equitable outcome… we certainly are looking like the convict nation… justice is out of the reach of the everyday Australian with nothing more than Mad Max mentality left for people to obtain some sort of outcome!
The Thoo case has effectively stopped all s62 claims in its tracks, yet I believe the misrepresentation on behalf of the judges was unintentional and over-reaching as it included residents who are affected by very dangerous issues such as crumbling walls, leaks, broken windows, concrete cancer etc. This case was after all about an air-conditioner, not about the wellbeing of any resident within a disfunctional scheme.
Now people can only turn to the CTTT (the Clown Factory) where the most you can hope for is a puny fine! There is now absolutely no incentive for an OC to protect residents/owners within a Strata Scheme.
I believe everyone’s response seems to forget damages are no longer obtainable under s62, even if the OC are negligent.
Hopefully the Dr Thoo will appeal to the High Court and restore the protections afforded to NSW citizens (and all other Australians, let’s not forget a NSW precedent can be used in other states) for this ruling is unjust.
Until that happens, the 3 judges should be ashamed of themselves as they have erred in their ruling by failing to establish what exactly isn’t required under s62.
All Strata Lawyers have basically had their client list almost totally depleted due to this case, something I am sure Makinson d’Apice are only all to aware of.
Hi melissaaimee/whale,
Having had health issues due to mould in a Strata Unit (which sounds remarkably similar to your complex – I hope you’re not in the same one!) it’s not the cold weather that is the problem but moisture. Mould growth is caused because the conditions are ripe for growth with the affected surroundings (common property) that provide the ideal conditions for mould growth.
The ‘wet’ weather may have helped exasperate the growth but the mould would have been there prior (lot of moulds/toxins are invisible), but it seems like your landlord and OC have established the presence of mould.
My advice would be to express your concerns with the landlord in a formal letter, seek a proposal to address the issue and state a reasonable timeframe for a response. Outline any further concerns you may have to ensure you are both on the same page. If you don’t hear back in a timely manner, apply to CTTT to have the issue formally dealt with.
With regards to the mould, the health issues can be excessive. If you have allergy like symptoms get checked by a specialist and tell them about the conditions you are living in. If a general ‘pin prick’ test is not conclusive (you may actually have an allergic disposition), there is a blood test available that is ‘a lot’ more conclusive. Either way an allergy specialist should be able to help you both out if you are suffering.
Best of luck and I hope it works out… if it doesn’t, you should move out!