[TrulEConcerned]

The move to ban owners corporations from making demands on owners (presumably also on behalf of their tenants) such as fees or bonds or insurance as a condition of having a pet, was clearly not thought out.

Say I get a dog, Rover. And Rover in my absence is taken for walkies daily by a dog walker. Occasionally Rover uses the common property as a latrine. As I am at work, I don’t know what Rover did and if I knew, there is not much I can do from my office, 30 mins way.

So the OC will clean the mess, which will take time and money. Assuming there is someone available to clean it up. Otherwise the mess will stay in place.

In time I am invoiced for the cost of a cleaner or neighbour making good the soiled area. I can collect and ignore invoices until the OC hauls me to NCAT. By then, the bill may be significant, especially for a small scheme.

Surely the correct policy is to have a bond (with the OC or in the case of a tenant, possibly with the apartment owner) of reasonable size and disallow any fee for the OC to “consider” an application.

Also it should be a given that there will be a public listing  of those applying for pets and the result of the application. Otherwise, what I have seen will be rampant: a tenant is found by neighbours to have a dog, with the apartment owner’s consent, but without a formal application process taking place. As the owner is a mate of a SC member, the application process was dispensed with.

 

[TrulEConcerned]

In most stratas I have been involved in, the committee usually seeks to document only what it considers was resolved at the meeting. This may be a true refection of what transpired or may be a willful distortion of what transpired. But in nearly all cases, committees do not include what they consider to be extraneous comments eg he said, she said etc, because for them (and for the strata mgr) there is no upside to including such comments.

[TrulEConcerned]

Flame Tree, your suggestion that

Perhaps the speediest way to improve things, and to prove you have tried to right the ship should it come to adjudication further down the track, is to put a motion to your committee to vote on regarding this concern

is good in theory.

I was involved in one strata where the strata committee declined to list my R&M motion, presumably so they would never have to deal with it.

At the very least, limoncello should email the strata committee (say the chair and secretary) and CC to the agent. If they continue to ignore the matter, email again and after you email, immediately online apply for mediation.

May I suggest that you pony up to mediation as a good citizen and have with you at least one quote that you obtained for the work. If the OC does not attend mediation or does not come to a agreement with you, the mediator will indicate your right to proceed to NCAT. Which you should.

[TrulEConcerned]

Jimmy is right. The strata mgr doesn’t know his job.

While looking for a replacement manager, who when found, may or may not be better than the one you’ve got, I suggest at the same time that you make a complaint about the strata mgr to NSW Fair Trading on 13 32 20. Note when calling NSW FT make clear it is a complaint about the strata mgr not the Owners’ Corp.

You’ll be asked to do so online where you can state that in regards to

Property and Stock Agents Regulation 2022 (this lists what is required of agents such as strata mgrs)

Schedule 1 General rules of conduct applying to all agents and assistant agents

that the strata mgr has failed to comply with the provisions of the Regulation.

NSW FT will  – if it agrees with you –  call the strata mgr and educate him on his legal obligations that underpin his license to operate.

I suspect soon thereafter either he will abide by the committee’s instructions or disengage as strata mgr.

[TrulEConcerned]

Thanks for the feedback.

Y’all make sense: so long as there isn’t “too much” stuff stored in the space or that it “isn’t an eyesore”, are on the one hand “reasonable” but on the other hand “subjective”. What is an eyesore to one may not be to another.

That said, I feel that in the absence of written rules as to what can or cannot be stored in car spaces, the priority must to ensure that the insurance policy conditions are not breached.

[TrulEConcerned]

As I understand it, in NSW, for instance, a tenant must be offered at least one way to pay the rent for which the tenant does not incur a cost and that is “reasonably available to the tenant“.

So for instance, if an agent offers you to pay by chq and does not place a surcharge on such pmts, then it would seem that he is complying with the law.

If you don’t have a cheque account, it could be argued that the agent is being reasonable asking you to get one given they cost no more to have than non chq transaction accounts.

 

[TrulEConcerned]

Jimmy, what you wrote about s. 104 is true in theory.

But not as practiced, at least in an earlier case of mine. In March 2022 I obtained orders from NCAT in my favour against the OC. Guess what? The so-and-sos on the SC  refused to abide by s. 104 and charged me part of the cost of the OC’s expenses at NCAT.

At a general meeting they insisted they were in the right to invoice me. They went as far as to say they had legal advice supporting their position, but were unable to say which legal scholar green lighted their decision to invoice me.

Of course I then could have applied for mediation on that issue; filed papers with NCAT for a return appearance; pay yet another NCAT fee and hope that NCAT dresses down the SC for breaching the SSM Act.

But I did not do that on that issue alone. I added that issue to the many I had which I withdrew recently, see earlier post.

Stopping SC members thumbing their noses at NCAT must surely be another part of the urgent reforms to strata regulations in NSW.

[TrulEConcerned]

I am sorry for your woes.
I would have to give this matter a very good deal of thought to decide what I, a layman, would do in your stead. But as an owner who has been involved in a few strata schemes including a decade stint on the strata committee of a large scheme, I offer my insights for you to add to your decision making process.
You raise many issues: did the strata manager and/or lawyer mislead you? Was the committee or is the committee incompetent? Is it out of its depth? Is it breaching its legal requirement to maintain common property (s.106 SSM Act)? You should argue that its behaviour demonstrates it is at the very least, dysfunctional.
Recently I complained to Fair Trading about a strata manager misleading me and soon enough he quit. I suppose he didn’t like to be the focus of an investigation. NSW FT did not (and does not) reveal what actions if any it took against the strata mgr nor did it (or does it) list managers who where the focus of an investigation and then quit their management roles subsequent to an investigation or if they did not quit, were turfed out by the OC. Not a transparent system is it?
Separate to complaining about the strata mgr, I took the OC to NCAT seeking amongst other things, a compulsory manager.
Both of the above actions took MONTHS of research, documentation and paperwork. And cost me money in filing fees, printing, travel and obtaining advice.
So what did I learn that could assist you? Broadly speaking there are four tasks for you to perform:

FOCUS ON STRATA MGR – You could complain to about the strata manager’s behaviour ie referring the owners to a lawyer, which didn’t help you and in fact cost you and other owners. For this go to the NSW Fair Trading website and lodge an online complaint about a “property professional” in this case a strata mgr. NSW FT will reach out to you to confirm the facts as you present them and then to the strata mgr for comment on your allegations. Before reaching out to the strata mgr, NSW FT will decide if the strata mgr’s actions are worthy of investigation and only then will seek answers to questions you submit in your complaint which should focus on how the strata mgr did not abide by the requirements of the Property and Stock Agents Act and Property and Stock Agents Regulation. Requirements include his duties, such as being honest;

FOCUS ON OC’s (previous) LAWYER – You mention the lawyer did a 180 degree change on the likelihood of success. I am not legally trained but to me one question that arises is whether the lawyer misrepresented the chance of success to owners?  Have a look at a NSW gov’t website where complaints can be lodged against lawyers https://www.olsc.nsw.gov.au/Pages/lsc_complaint/olsc_making_complaint.aspx
There may be other websites where you can complain against such lawyers, as a layman, I am not sure.

FOCUS (also) ON OC – If you seek anything for the OC  to do (eg building works) or seek a change in how it operates eg wanting the OC to surrender its existing management agent, before scooting to NCAT you must attempt mediation.  You can apply for this also on the NSW FT website. As others have often written on this website, it doesn’t matter a jot if you and the OC actually mediate (as they may choose not to attend or set conditions for their attendance). All NCAT wants to hear is that a date for mediation was set and hence attempted.

At NCAT you’ll most likely – as I was going to – face the OC’s lawyer who will run rings around lay folk. Having the facts in your favour is in my experience insufficient to win. Also it’s reasonable to assume the OC will either use its insurance cover to pay for a lawyer or will seek owners agree to dipping into the strata scheme’s bank a/c to hire a lawyer to defend your allegations. Either way, the OC will no doubt have more resources available to it than you would. Oh, and say you do hire a lawyer costing you one arm and two legs. Say you win. There is absolutely no guaranty that NCAT will order that your costs in full or in part will be paid for by the losing side ie the OC; and

CONSIDER HIRING A LAWYER – either to represent you at NCAT alone, or you and others (once you convince others to join you). Alternatively, at a general meeting of the owners (ie outside the NCAT process), you could try to persuade the OC to hire a lawyer to undo the wrongs of the past. Either way, only approach a lawyer specialising in strata law.

 

[TrulEConcerned]

Sorry for my late reply.

JustAsking: yes, it’s too late to get the matter back on track as I withdrew my NCAT application for a hearing.

Jimmy: you’re correct, in my experience about NCAT preferring legal representatives to argue for parties, as NCAT it seems believes that self representing litigants may be time wasters.

In my case the OC sought my consent for legal representation at NCAT and I said “no”.

They then asked NCAT, who said “yes”.

The OC let me know that they will not only engage a lawyer but will call on the strata’s insurance for this. Not only could they outspend me many times over, but I was quoted no less than $12k if I wanted legal representation.

And even if I won, there is nothing to guaranty I would recoup any or all of this $12k. Often NCAT does not award costs. And I personally would not benefit much from a victory. It would be the OC that benefits,  as my focus was on correcting unauthorised withdrawals from the OC’s bank account and force the OC to attend to R&M.

[TrulEConcerned]

@kaindub wrote:

The act allows the functions of the chair, secretary and treasurer to be assigned to the strata manager. But the act is very specific of the functions of these positions and no way does it say any function has decision making power for the OC.

In theory what you wrote may be true but  in practice, it is hard to force the scheme/strata mgr to act in a certain way. This is because NCAT is not always a level playing field. Case in point: I had a hearing coming up later this month to address many issues: including s. 46 (payment to SC members), s.106 (common property repairs), s.237 (compulsory mgt) and other matters.

But I pulled out because the OC insisted on having legal representation. I objected as I would be foolhardy not to have similar representation, but the cost to me would be in the 5 figures and therefore I can’t afford it. NCAT has allowed legal representation for the parties.

I believe that if there is no committee, then the decisions of the OC must be made at a general meeting. ( the intent of the committee by the legislators is so thst a small group can make decisions for the whole group).

Again what you say may be right as per the Act but it’s not how some schemes work, and to shed light on their behaviour (ignoring the Act) just look at a scheme I am involved in where a few days before mediation I was asked (I who took the OC to mediation) if I agree to the OC being legally represented. I said “no”.

Had I said “yes”, the mediation session some 2-3 days later would have gone ahead but would do so in the absence of a GM of the owners to assent to legal representation. That is, the strata mgr seemed to have decided on legal representation w/out a meeting of the owners; w/out the agreement of owners and w/out a cost estimate from the lawyer, was the way to go.

It is getting very frustrating to have to challenge poor behaviour by an OC (by me applying for mediation then attending mediation session then applying to NCAT and then attending a hearing) and on top of that challenge the validity of a lawyer’s engagement to  represent the OC.

 

[TrulEConcerned]

Kaindub,

Thanks for your reply.

You wrote (in regular text below) with my response in italics:

Hang on. No SC. That means no strata committee?

Correct. The SC dissolved 2 mths ago and gave their powers to the agent with no discussion with owners prior to a EGM where there was no Q&A. That was the point of my application for mediation: for the OC to explain itself. The OC decline mediation and I can take the matter to NCAT.

So how is the strata manager getting instructions?

I suppose it depends on how he feels. He certainly does not ask me for my views and I am unaware that he seeks instructions on managing the scheme from anyone.

The strata manager can be delegated the functions of the chairman, secretary and treasurer but thst does not extend to making decisions of the OC. Has a general meeting been held to confirm the lawyer.?

No, there was none.

To decline mediation at NCAT?

No, there was none.
I

think you have a strata manager that’s overstepping their authority.

I agree.

If you ever get to NCAT on this issue, I’d raise with the tribunal whether the strata manager or the lawyer isvauthorised to represent the OC.

After I did not consent to a lawyer representing the OC at mediation, as stated earlier, the OC declined mediation. The next day the OC’s alleged lawyer (not strata manager) wrote to NCAT seeking leave to appear for the OC at the forthcoming NCAT hearing. There was no meeting of the owners prior to his letter to NCAT authorising his engagement. NCAT asked the lawyer to seek my consent to represent the OC. The lawyer then wrote to me and I did not consent to the OC having legal representation as surely the cost of a lawyer is prohibitive for a small strata scheme; the participants should be able to themselves explain their behaviour, which I documented in my evidence; and that a lawyer for the OC would, I claimed, disadvantage me, as I can’t afford a lawyer. NCAT today allowed all the parties lawyers if the parties wanted them citing the issues involved are complex.

You may find you are fighting no one and get a judgement in your favour because the other side did not turn up.

[TrulEConcerned]

Update:

After I did not agree to a solicitor representing the OC at mediation (preparing and speaking for), the OC declined mediation.

Now their solicitor wants my consent to representing the OC at NCAT.

As there is no SC, it’s the strata mgr who seems to be pushing for legal representation at NCAT.

 

 

[TrulEConcerned]

Kaindub

Many thanks for your feedback.

It’s very informative.

[TrulEConcerned]

Jimmy thanks for the detailed reply. You gave me much to think over.

[TrulEConcerned]

If you allow a strata manager or strata committee to get away with late publishing of minutes, then they will make this their habit.

You must make clear to them that such behaviour is not acceptable.

Last year at a strata I am involved in, the strata manager took 40 days to publish minutes, that is 26 days AFTER the 14 days allowed for publishing. This was in addition to other infractions she committed.

I complained – via the website – to Fair Trading against the agent and FT spoke to him.

Very soon afterwards she quit as managing agent of the scheme.

Separately you could seek mediation with the owners’ corp on this matter.

These two separate complaints should make the agent and strata committee sit up and listen.

[Author]

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