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A lot of very bad advice here. It is true that an OC is not automatically considered an employer as a consequence of ‘being in business’. It is also true that “A contractor is not employing someone” – but only if you can establish that the person doing the work really is a contractor, and that can be very difficult to determine. For instance, many people laying carpet are actually engaged as ‘casual contractors’ but, in the event of an accident, would probably be considered an employee of the company that you signed the carpeting contract with (because that’s what they do for a living, they work almost entirely for the one business, they don’t provide their own tools or transport, they do get training, they don’t advertise their own services, etc, etc). But the carpet company doesn’t want to pay WC insurance, so they have decided that their employees are actually self-employed sole traders and they don’t need a policy to cover them. If they have an accident and they discover they aren’t covered like they thought they were, they will come looking to the OC for compensation, and they might succeed. The best protection is a properly checked subcontractor’s statement, but are you sure that your managing agent is getting one for every subcontractor, that it’s up to date, and that it has been checked for gross stupidities that might invalidate it? Do you know that the young kid who sometimes helps the gardener put the bins away for a few dollars is covered by the gardener’s WC policy, or that the gardener doesn’t have a policy because he considers himself a sole trader who doesn’t need one? Not really an issue when the kid drops a bin on his foot – a big issue when he steps out in front of the garbage truck.
Even a claim that cannot succeed (such as some tradespeople who make a career out of having an accident the first day on the job) can tie up the OC in a massive amount of time, trouble and money defending a case.
It’s insurance – it covers the times when someone stuffs up, makes a mistake, accidentaly enters into an employer situation, and suddenly becomes liable. Declare wages paid as zero and the premium will be nominal.
WC Insurance is strongly recommended. Coverage for an organisation that does not employ anyone is nominal – less than $100 pa from memory.
The problem is that you can employ people and not know it! If you engage a contractor, and that contractor is not self-employed, and if the managing agent fails to get a subcontractor’s statement from the contractor, or if the managing agent gets the subbies statement but doesn’t check it properly (most of them don’t know what to look for) then you could find that the contractor has a claim against you. You could even be liable for a contractor engaged by an owner that the OC didn’t know about, for instance in an emergency.
The definition of who is or isn’t an employee is complex, and could include volunteer workers.
You will not be refused WC insurance. Claims history can be used to calculate your premium, but is very unlikely to apply in this case. It cannot be used to refuse insurance. For the small cost involved it is an essential protection.
If your managing agent is making these sorts of comments then you have an additional problem of ensuring that they are managing subcontractors properly and that they are keeping adequate records. For instance, the subbies’ statements I referred to above – these are essential for proving that the subby was not an employee.
You need to confirm that the Managing Agent is obtaining these statements in all cases, that they are up to date, and that they are properly checked. For instance, many subcontractors answer the question about having their own WC insurance by quoting a personal accident insurance policy – this is not the same, and in the event of an accident they will not be considered as covered, meaning that the responsibility might fall on the OC.
Also, many subcontractors don’t actually know whether they are sole traders or employees! You do not have to validate the information provided, but it is essential to check that the form makes sense. Your managing agent must be familiar with the rules and must have procedures in place to ensure that you do not get hit with a claim.
It seems that the 75% rule may now me achievable, but there are a number of additional steps required. Most importantly, there has to be an actual redevelopment offer on the table. So you cannot be forced out because the other owner is planning to sell to a developer – there must be an actual deal in place. If it is a sham deal that the owner has concocted to get control of the premises, the Court should be able to detect that, and it would not be approved.
That deal must be fair, having regard to a wide range of factors, including costs you may incur in relocating. You will be able to object if you regard it as unfair, and the arbitration process is set out in the Act.
The process must have been conducted in good faith. In your case, I would guess that this requirement would be examined very carefully, because the 75% used to approve the action was held by associated persons. For instance, if the owner used their 75% voting power to increase your contributions or make other changes designed to force you out before the approval is completed, that could be taken as a clear indicator of bad faith, and the plan could be rejected.
If the other owner is able to come up with a plan that meets all those requirements and which makes it through the Court approval process, the likelihood is that the amount received for your unit will be considerably in excess of the current market value of the lot. That has been the experience to date.
There is free advice and advocacy available to certain people – you should check if you qualify:
https://www.fairtrading.nsw.gov.au/sites/ftw/Tenants_and_home_owners/Strata_schemes/Collective_sale_and_renewal/Strata_Collective_Sale_Advocacy_Service.pageI can’t imagine what argument that owner could be relying on. If the premises subject to lease are no longer available, due to events beyond the control of the lessor, then the lease terminates. There should be provisions in that lease for how that happens, but that’s between the owner and his tenant. It’s no different than if the property was resumed, or any number of other circumstances where the property is no longer available. Commercial or non-commercial makes no difference.
A chain or wire from the handle in the centre of the opening side of the window to the corresponding point on the frame is a suitable and inexpensive alternative to something that blocks the track. In fact, for very narrow sliding aluminium windows such as are often used in bathrooms and laundries it is the preferred option, because very narrow sliding windows can tilt when pushed up against a stopper in the lower rail, creating an opening of much more than allowed 125mm.
Designate those areas where parking isn’t going to be a problem as ‘Resident Parking Only’ areas with a sign or pavement marking. Then tell everyone that they can only park in designated areas, and enforce it.
Sharing the spaces amongst all residents on a first come-first served basis is fair, and will probably mean that the existing arrangement doesn’t change, except that there will be no question about favouritism when it comes to applying the rules.
The problem is in the use of the term ‘invalid’. A by-law that is invalid effectively does not exist. It could be invalid because proper process was not followed – the vote was counted incorrectly, or proper notice of meeting was not given, or something similar.
The only other basis on which Fair Trading could declare the by-law ‘invalid’ would be if there was a reason that it could not be considered in a matter before the tribunal. The tribunal would then be entitled to act as if the by-law did not exist. This can happen if the by-law addresses something that is outside the authority of the Owners Corporation – a by-law that pretends to restrict owners from parking their vehicles in the street, for instance.
So the question in this case really is “Can the Owners Corporation pass, and attempt to enforce, a by-law that requires compliance with laws or regulation of another authority”? and I doubt that the answer to that would be anything other then Yes.
Is it necessary? Perhaps not, considering that compliance with those other rules is required in any case. But that doesn’t make it invalid.
I can’t think of any other reason (other than the technical invalidity, mentioned above) that would entitle the tribunal to ignore a by-law.
Perhaps there is a feeling that the tribunal could not issue an order or impose a penalty if an application was successful. The only basis for that presumption seems to be that the enforcement of the actual regulation lies with another authority – the local Council. But there are many places in law where enforcement action can be undertaken by more than one agency, so that seems an unlikely basis for their position.
It may be quite proper to suggest that the problem of short term letting is best addressed by direct appeal to the local Council by individual owners. If that is so, then a by-law that empowers the Owners Corporation to do the same thing on behalf of all owners must be perfectly valid.
But if the process was proper and the action lies within the authority of the Owners Corporation then the by-law is valid. Whether or not it is enforceable in practice is a different story, and that can usually only be determined by testing it in the legal system.
I think the process would be something like this.
The new committee resolves that the Owners Corporation will get instructions from a lawyer re issuing a demand to the members of the committee that started the legal action without approval for incurring obligations and making payments from the Owners Corporation funds without proper approval of a general meeting. There should be supporting documentation for the likely cost (it is for advice only, not for actually doing anything) to substantiate that there is no requirement for a general meeting to approve.
The advice will be that those owners should be advised of the proposed legal action, and a notice prepared and distributed for a general meeting at which the proposal for recovery of the unapproved expenditure from those committee members will be put to the owners. The Treasurer at the time should be specifically identified as the responsible person, but the liability would actually be joint and several.
Meanwhile an application is made to the Tribunal for awarding of costs that excludes from the special levy all owners who were not part of the Committee at the time that the payments were made.
With those two actions in front of them the owners who spent the money without approval will come to an agreement to meet the expenses by levy contributions based on their responsibilities, and a notice of adjudicated agreement can be lodged with the tribunal. If that doesn’t happen, the owners can then consider whether or not to take things further.
I have been in a similar situation for a number of years. The EC and the Strata Manager refuse point blank to accept that when a fund goes into deficit they must raise a special levy to reimburse the other fund that paid the bills. They claim that the next time that owners pay their levies means that the fund is 'reimbursed', and there's no need to have an EGM and a special levy. Some other owners are concerned, but mostly they don't bother to look at the issue. In 3 of the last 6 years there has been a deficit in the Admin fund.
I'm not sure if the Strata Manager reallly is that incompetent, or they just agree with The Committee for a quiet life. When an audit is required, the Strata Manager won't even show the auditor the annual financial statements – they present him with the listing of receipts and payments and he audits that. So I think they know they have something to hide. But the Committe doesn't even know the difference between a trust fund audit of receipts and expenditure, and an audit of the financial statements, so they just accept the report.
Of course, this is the same Strata Manager that couldn't correctly count the votes on a Special Resolution at the AGM until the CTTT told them they had to do it again. So there's a good chance it is simply incompetence.