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From my experience you don’t need a lawyer if the case is simple and you can discover other precedent cases on the Austlii site.
If the case is more complicated and you are dealing with a novel subject matter than a lawyer might be appropriate.
These things take time so you would need someone who has the time available to do the research and write the application and/or response.
Alexandra – Are you an owner or a tenant?
If you are an owner you will need to do a couple of things before you mount a challenge to the users of the store rooms.
1. Check to see whether the store rooms are actually common property and are not on the title of the two users.
2. If the store rooms are common property then check through the records to see whether the store rooms users have been granted Exclusive Use of the common property.
3. Check also as to whether the two users of the store room have been granted a lease or a license to use the use the common property store rooms and if so when the lease or license expires.
When you are satisfied that the store rooms users are not using the store rooms with permission of the Owners Corporation then you will need to write a letter to the Secretary via the Strata Manager stating that you would like equal access to the storage area by a certain date (e.g. one month from when you write the letter). You could suggest that a by-law be written and submitted by the committee to the next general meeting outlining the ways that the storage rooms can be used by the owners.
You could suggest that access to each of the storage rooms be allocated to only 5 of the owners. That way, at any given time, each store room will only be able to be accessed by 5 owners. Tenants would need permission from their landlord to use this space. The rooms could be divided up dependent upon their size.
If the committee do not address this issue then you could seek mediation via the Office of Fair Trading, and if not resolved then via the Tribunal and the NCAT route, OR you could continue along the path of trying to sort this out internally by submitting your own Motion at the next General Meeting for all owners to vote on, stating that the store rooms are to be available for use by all lot owners and that a by-law be created to allocate usage.
The explanatory material that you would need to submit could contain your findings and your suggestions.
Is the compulsorily appointed Strata Manager resigning before the expiration of their contractual term? And, did the Tribunal appoint the Strata Manager?
If your answer is ‘yes’ then perhaps your question should be addressed to the Office of Fair Trade as it will be the Tribunal that will need to find a replacement.
Waratah – To add to JT’s comment ….. it may be helpful to you to read through some previous NCAT decisions to find out what the Adjudicators will be looking for and to make sure that your Application is fully supported by the correct documentation etc.
See the link below for a 2014 case. It was unsuccessful but the reasons why it was unsuccessful may help you improve your Application.
Costs are referenced here: http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/nsw/consol_act/caata2013326/
You could ask for reimbursement in your Application but you need a good reason for doing so. But why would you bother asking? The fee is only relatively small.
If you have a Concession Card the fees are only $25. Ordinary person fees are $100.
Being happy that you won should be reward enough, shouldn’t it?
From Walsh v The Owners Strata Plan No 10349 [2017] is the following extract:
“Under s 60 of the NCAT Act, the general rule is that parties pay their own costs. There must be “special circumstances” justifying an award of costs before the Appeal Panel will make a costs order.
60 Costs
(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36 (3),
(g) any other matter that the Tribunal considers relevant.
I wouldn’t have thought that it was OK to wash rubbish or detergents down the storm water drains.
http://www.environment.nsw.gov.au/resources/stormwater/whatdo/leafletlo.pdf
Investor13 – In short, no. This would clearly cause a nuisance to the occupant of the lower level.
S[153] SSMA 2105 states the following:
153 Owners, occupiers and other persons not to create nuisance
(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not:
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
(b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
(c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.
If I was in your position I would write to the strata committee via the strata manager and raise a complaint about this nuisance. The committee or strata manager should then write to the occupant of the upstairs Lot and stipulate that they stop hosing their balcony immediately.
If hosing is sometimes necessary then you can ask the Committee to put a Motion to the next general meeting about balcony cleaning which stipulates the days and times of the week when hosing is permitted e.g. Friday between hours of 9 a.m. to 10 a.m. The owners can then vote on this by-law Motion.
Thanks Austman. D1 became 3.
I am not an accountant. Perhaps you should seek advice from an accountant.
It is my understanding that ‘Bodies corporate’ are just another name for ‘strata’.
The definition of a strata title body from the Ruling is below. Please note particularly Section (8):
Strata title body
6. The term ‘strata title body’ is a reference to a body corporate
created on registration of the strata scheme under the relevant State
and Territory Acts.7. The strata title body is constituted by the proprietors but is a
separate legal entity with specified powers, authorities, duties and
functions. Though these powers, authorities, duties and functions
vary under the different State and Territory Acts, generally they
include:
• the power and authority to impose a levy on the
proprietors, to make by-laws, to carry out necessary
work, to invest and to borrow
• the duty and function to control, manage and
administer the common property, to maintain the
common property and keep it in a good state of repair,
to effect insurances on the building and common
property and to keep records and books of account.8. A strata title body may also be called a ‘strata title body
corporate’, ‘body corporate’, ‘strata corporation’, ‘owners corporation’
and ‘community corporation’.It is my understanding that Levies are generally excluded from the definition of taxable ‘income’ under the principle of mutuality.
Austman – It is my understanding that the latest ATO interpretation is that: “bodies corporate are now considered to be non-profit bodies for GST purposes provided they do not have an intention to distribute interest or other income to members.”
See here:
http://sskb.com.au/wp-content/uploads/2016/06/UP2009-GST-Registration-75k-to-150k.pdf
and here:
This PDF from the ATO may be helpful (though complicated – if you are not familiar with the terminology):
Taxation Ruling Income tax: matters relating to strata title bodies constituted under strata title legislation
https://www.ato.gov.au/law/view/pdf/pbr/tr2015-003.pdf
A more user friendly information source from Strataman is here:
SJ1965 – What is the outcome that you are trying to achieve? Are you trying to obtain from the previous owner the cost to you of your share of the common property repairs?
If so, is it worth the cost of the solicitor’s fees? The financial result of chasing the previous owner for the cost of the repairs via the solicitor is very likely to far outweigh any benefit that you may be able to obtain.
A favourable outcome for you is far from certain as the legislation is very unclear as it what must be included in the Minutes.
If I was in your position I would not be pursuing this matter any further.
If you want to make sure that Committee discussions are Minuted from now on then you could raise a Motion at the next General Meeting. The Motion could state something like this:
“That in the interests of transparency that all topics that are discussed by the Committee at a Committee Meeting are to be recorded in the Minutes and this is to be regardless of there being a resolved outcome from the Committee’s discussion of the topic”.
Follow the money.
The cynic in me sees that short term rentals will be supported by each of the State governments because there is a ‘buck’ to be made by the government from it. The ‘bucks’ will come from taxes on the money earned from the rentals, provisional tax, possible GST (depending upon the services offered), and in Capital Gains Taxes when the properties are sold.
However, undeclared short term rentals have the potential to ‘fly under the radar’ of the ATO and become part of the ‘black economy’.
Owners who let out their apartments on a short term basis need to become aware of the consequences of their actions, and should obtain legal and financial advice before they do so.
An unaware owner who decides to rent their property on a short term basis may find that capital gains tax liabilities might end up overwhelming any income made from renting it out. If the unaware owner is on a pension then their pension may be impacted. Is it really worth it in the end?
Do you suspect that some owners in your building are renting out their apartments on a short term basis and may not be complying with their ATO obligations? What are you going to do about it?
In general, a strata committee must keep full and accurate minutes of its meetings. The minutes must include details of all resolutions passed, including those considered without holding a meeting.
What does “full and Accurate minutes” really mean? This is a ‘grey’ area. Legal opinion varies on this issue.
A NSW opinion regarding the recording of debate and discussions in the Minutes of a Committee Meeting is: Strictly speaking, these need not be recorded, as they are not resolutions.
See: https://www.lookupstrata.com.au/body-corporate-meeting-minutes/
In contrast, a QLD legal opinion from Hynes Lawyers stated:
At a minimum, there should be a record that discussion about the issue occurred. Subject to what the issue of concern it is may be appropriate to leave the decision out of the minutes, but I think the chances of that are remote.
What the committee discusses, and decides, should be a matter of community record – even if the subject is controversial. Ultimately, proper decisions on matters of substance are reserved for owners in general meeting anyway.
https://www.lookupstrata.com.au/qld-body-corporate-committee-meeting-minutes/
I note that your issue relates to the ACT. I do not know whether the ACT situation is more akin to NSW or to QLD.
Flame Tree – The following extract from the Qld govt web site might answer your question:
Committee meetings
Body corporate legislation does not deal with owners’ motions to committee meetings. However the minutes of committee meetings must include details of any correspondence (notes or letters) presented to the meeting.
Therefore an owner can send correspondence to the committee and this can include a request for the committee to vote on at its next meeting.
However, if a request is put more formally as a motion, it can be dealt with more efficiently.
A number of adjudicators’ orders refer to committee transparency and adding items to agendas. You can search for adjudicator’s orders on the Australasian Legal Information Institute (AustLII) website.
A lot owner who is not a Committee member must give the secretary at least 24 hours written notice of their intention to attend the Committee meeting.
The legislation permits the Committee to act on behalf of the OC. You could ask the Secretary of the Committee and/or the Committee to authorise the SM to provide your access to the Roll, being that you are a committee member.
However, the easy way is to just pay the $31 inspection fee! It will save you a lot of time and anxiety.
The Office of Fair Trading web site states:
Inspection of records
An owner or mortgagee (or their authorised person) can make a written request to the owners corporation to inspect the records. The request must be accompanied by the prescribed fee (currently $31 for the first hour of work).
The inspection is to take place as agreed by both parties. If no agreement can be reached within 3 days after the owners corporation receives the application, the owners corporation may stipulate the time and date by giving written notice. The inspection date cannot be later than 10 days from the date the owners corporation receives the notification.
Documents can be inspected in person or through electronic access to the documents or any other means agreed. A person may make copies of documents but must not, without the consent of the owners corporation, remove the document from the custody of the owners corporation.
I have not seen the PSBA used in these circumstances. It seems overly complicated to use the PSBA considering that you are able to access the Roll under the SSMA.