[TrulEConcerned]

Hi Tina and Boronia,

I am in a rush to dinner but wanted to address what I could in response to your posts. I will write more later.

Tina – I spoke to the insurer, at length. She was very informative. There is no PL cover for the strata in the event that an incident e.g. a fall that is a consequence of works performed by tradesman. The example given was a tradesman repairing a driveway and the job was not performed correctly, resulting in a delivery person, at a later date, tripping and falling when he would neither have tripped nor fallen had the job been done right.

As for the OC overriding the SC….. the SC is large and those not on it are all disinterested owners (some of which live in the bush and seem not to care who’s on the committee so long as they are not). They have rarely voted in person or by proxy at meetings.

Boronia – the insurer said (and this was news to me) that an owner (any owner, committee member, absentee etc) performing works at a strata is not considered a “volunteer”.

[TrulEConcerned]

TheHood, you wrote that you “do not believe the agent can place motions on the agenda“. I think the matter turns on (a) whether the agent has mostly been managing the strata i.e. the SC was uninvolved in running the strata and he has those powers listed in the management agreement; and

(b) Even if the the SC has been involved in running the strata, the question is “was the Secretary shown the motions before they were sent out”? Often an agent will not even bother to give the Sec or the committee what is in truth a draft of the agenda that should have the Sec or committee tick off on it before it is sent out.

TheHood you also mention that “Does you agent understand he is the delegate and that the elected SC members and SC still hold power and that his delegations are not approval to run the show“? This is true BUT I have seen agents only bend to a committee’s instructions after the countless delegations listed in the management agreement have been reversed by owners at a general meeting.

[TrulEConcerned]

Jimmy, ok, third time lucky.

JustAsking, in answer to your query, the SC member wants to do what he calls a small maintenance job for $1,000 involving metalwork (not gardening, not plumbing, not electrical and not cleaning). I understand that wants to do more (metal and building) work as it is needed. And it is needed given the inactivity of the earlier committee. (That more work is needed is agreed by all).

The facts for the above job are:
1. No quote was offered, just a figure of $1,000 (even though 3 times I asked for a detailed quote) and
2. No confirmation of public liability (“PL”) insurance was forthcoming. In fact when I raised the issue for the 3rd time I was told that he doesn’t think “this small job” warrants PL insurance but if I insist, he’ll get it but only if the OC pays for it.

 

[TrulEConcerned]

Hi Jimmy,

Re: SC member offering to do work for OC

I tried twice to post a reply to JustAsking, but my post never appeared.

[TrulEConcerned]

I would have thought that any claim by an owner to the OC would require evidence that say an expense was incurred by the owner to repair or replace an item or that damage to that owner’s premises or assets was sustained. This is because such evidence is needed to justify a claim.

The fact that an earlier committee declined the request could be based on fact, i.e. there was no satisfactory evidence or there was no direct link between that which was repaired or replaced and the lot owner; or it was based on fiction (i.e. internal politics)

[TrulEConcerned]

Good day Stu,

A few points come to mind when reading of your woes:

1. When considering breaches by the strata manager or the committee, look carefully at the SSM Act as well as the Property & Stock Agents Act (the “P&SA Act, which governs strata managers’ conduct). It is possible to file complaints under both Acts at the same time with NSW Fair Trading: one seeking compulsory strata administration and the other against the strata manager;
2. I could see nothing in your post that was in bold;
3. In every strata scheme I have been involved with, irrespective of the powers the strata manager is delegated by the OC or powers the strata manager wants to seize, those specific powers were always listed and quoted from the SSM Act’s relevant sections and those sections were an integral part of the motion. The sections most often quoted in my experience are 49 and 52, but sometimes other sections were included in the motion.  Below I list the key sections of the SSM Act. Note you must look separately for what is expected of the strata manager by the P&SA Act.

SSM Act
Part 4 Strata managing agents and building managers
Division 1 Appointment of strata managing agents

49 Appointment of strata managing agents

50 Term of appointment of strata managing agents

51 Transfer of functions of strata managing agent

Division 2 Functions of strata managing agent

52 Owners corporation may delegate functions to strata managing agent

53 Exercise of delegated functions by strata managing agent

54 Functions of officers and strata committee may be given to strata
managing agent

55 Strata managing agent to record exercise of functions

56 Exercise of functions of strata managing agent appointed by Tribunal

57 Breaches by strata managing agent

4. Often a committee may lose members, such as office bearers and those remaining may want to lean more on the strata manager, so that would prompt him with or without the aid of those remaining on the committee, to formalise his more expanded role. You did not state if those remaining on the committee are the office bearers. If say, you have no office bearers, then the strata manager – as a result of what those resigning or selling out may have said to him or by his assessment alone that there is no active committee driving the scheme – has taken charge.

Note, at all times, even with delegated power to the strata manager, the OC has ultimate control.

 

[TrulEConcerned]

On the issue of fees, I got conflicting opinions from Fair Trading.

One person said the set fee goes to the agent, while another Fair Trader said the fee is paid to the OC.

Who is right?

 

 

[TrulEConcerned]

The first thing is for you to obtain a copy of the strata management agreement signed by the OC and the strata managing agent so you can understand what the agent’s listed (agreed) functions are.

[TrulEConcerned]

As there is a set fee of $34.10 in NSW to access all records, if an agent charges a per document fee of say $50,  is he acting outside the law? Imagine wanting to access 15 documents. One would be up for $750.

A novel way to ensure nobody scrutinises the agent and the committee.

[TrulEConcerned]

“Chocolate wheel” analogy is brilliant and spot on.

[TrulEConcerned]

Tina,

Thanks.

What you wrote is spot on. I know about that section of the SSM Act.

A request is of course to the OC but when there is no SC and the strata mgr runs the show in place of a SC, it is to her that I made the request.

I spoke to Fair Trading and they insisted I make a formal complaint because they have received several from owners at other stratas with similar demands by strata managers for payment per document accessed.

 

The Hood,

Thanks for the detailed response, which I shall stew over this w/end.

I agree with you that a complaint about the agent’s conduct is a complaint about the OC. The fly in the ointment is that there is no Chair, Treasurer etc. All functions were delegated by the OC to the strata mgr at an EGM months ago when the SC dissolved. I voted against the delegation because  I sought a new SC be established, but the committee member who convened the meeting after selling his lot, did not want a new SC.

 

[TrulEConcerned]

The Hood suggests that NCAT grants leave to allow representation and that it’s best for a single lot owner to argue that both he and the OC not have such representation.

That was exactly my situation and thinking when I brought action against an OC and SC members earlier this year.

NCAT tossed my suggestion aside and allowed the OC representation, which soon after I discovered meant a near bottomless well of funds with which to pay with as, the insurance coverage funded it.

Regardless of the way the OC pays for representation eg whether it’s funded by insurance or a special levy, all an alert strata mgr (or strata committee representative if there is no manager) needs to do is inform NCAT that “he is not a lawyer and is so busy with 1,001 matters, it would be so unfair for the OC not to be represented”.

What The Hood said (see my first para) will only be gold plated with such communication by the OC (or strata mgr) to NCAT.

 

[TrulEConcerned]

Hey Tim

Having been in an almost identical situation a couple of months ago, where I wanted to take the OC and individual committee members to NCAT, I offer below what I saw:

1. OC got legal advice without resorting to a meeting, but said it would not act on the advice until after they held a meeting;

2. When naming the OC and individuals as joint respondents, the OC made clear they will have different legal representation to the individuals at NCAT. Who is to say the individuals did not or would not piggy back on the OC’s pre-NCAT hearing legal advice?;

3. Only if the individuals can show they acted in good faith then it is likely that the strata insurance will cover their costs (i.e. office bearers’ liability); and

4. If the OC can convince its insurer that the OC has a reasonable chance of success at NCAT, against the applicant, then the strata insurance will cover the OC’s legal costs.

5. From what I read in the past and Jimmy reiterates the point: NCAT does not usually award costs. So it’s only in your interest to go to NCAT if your expected benefit > your expected costs. Note the OC will often have a big bucket of money to play with under the strata insurance policy.

[TrulEConcerned]

Thanks Kaindub, much appreciated.

My aim is to recover losses to the OC both historic and ongoing, see below.

In my case it’s going after a former committee member who cannot call on the insurance policy cover that current committee members can when sued.

Of course it makes sense if the expected sum obtained via legal action exceeds the cost of the legal action. One ongoing cost for the OC  is that he handcuffed the OC to a strata manager of his choosing who is expensive, unresponsive and unaware of the SSM Act. And did so after he already sold his lot.

The strata mgr is not keen on transparency. Recently when I asked to access the strata records, for which the SSM Act allows access to ALL the records for a nominal fee, the strata mgr replied that I will be billed $49 for every document I wish to view other than my levy ledger.

[TrulEConcerned]

From the time you file for mediation on NSW Fair Trading’s website, it takes many weeks, in my cases 2 months,  for the matter to be heard by a mediator. As Jimmy correctly points out: mediators cannot issue instructions or orders. That said, in one of my cases, NCAT issued orders to the OC which were ignored.

I see nothing to lose by emailing the committee and agent and if say a week thereafter they do nothing or do not reply, then file for mediation. After you file, let the committee and agent know you filed. This is because it takes time for Fair Trading to process your application and only then will Fair Trading tell the committee. This could be 10 days after you file.

Your matter will be listed beyond the 2 months the OC has to indicate they will fix things.

It is clear they are, as Jimmy states “running down the clock”.

In the event that the committee does the repairs before your matter is heard by the mediator, or at least begins the repairs, you can always withdraw your application. Applying is free and sends a msg to the lazy so and sos that you will assert your rights to the extent (limited that it is) under the SSM Act.

 

[Author]

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