[TrulEConcerned]

Good evening Greynatter,

I agree with what has been suggested in case this complex matter may well turn on the grounds of “mental health”.

Two things come to mind:

1. In your shoes I would seek to document any and all instances you witnessed or heard of that demonstrated that the neighbour is not ALWAYS “irrational” and not ALWAYS suffering from “mental health issues”, but indeed AT TIMES is quite “rational” and functions well. If you can show situations that paint a picture of a person behaving at times in a manner that is “normal and reasonable” and at other times behaving as though he is “unwell”, that may help dilute the presumption of genuine  suffering from “mentally illness” and may rob him of the ability to diminish his liability (assuming he is found liable); and
2. Look up “private nuisance”. Nuisance (private or public) is a civil wrong that involves a person or persons causing indirect, unwarranted and/or unreasonable interference with the interests of others. Google strata lawyers (who sponsor this website) for articles on the subject and hunt down previous cases at tribunals and courts to see the outcomes of those cases.
   

Good luck!

[TrulEConcerned]

Thanks for the reply. Much appreciated.

[TrulEConcerned]

Jimmy you are correct when you write that NSWFT (in the case of Mediation) or NCAT (in the case of a hearing)  in due course contacts the Respondent. It does so after the relevant body has processed the application.

What I meant was that many times an OC or SC will try to persuade an owner from even filing an application. This will result in either no application being filed or an application being filed at a later date. These outcomes only extinguish a hearing altogether or delays a hearing date and thereby gives the SC/OC time they need not be granted by an aggrieved owner.

I also recommend owners when seriously aggrieved to file an application, even if they believe a SC/OC will do the right thing. An owner can always w/draw an application before a hearing or mediation takes place.

[TrulEConcerned]

Kaindub thanks for the reply.

The same committee has never been transparent in what it looks for in an agent or how it comes to a decision, suffice to say earlier agents were promoted by one committee member. That said, each time, the OC was asked to vote on a new agent, some 3 names were offered to owners to choose from, with the committee strongly supporting one in particular. The support offered no details as to why one is better than the others.

I refer to a small strata (6 units and at least 1 has never shown interest in voting on anything) where little is needed other than an agent sending out levy notes and paying bills.

I hear you about a committee being able to make decisions rather than all the owners. But I argue that the committee is incapable of acting in good faith on this issue amongst others and hence they breach s. 260. Offering one name in isolation may not be evidence of a lack of good faith. But I say that good faith is absent given the committee’s conduct in the past:  I took the committee to a mediation session  (on behalf of the OC) previously about their absence of good faith when they refused to make available a history of communications with a contractor (for a problem that is 4 years old and still unresolved). They still have refused to make those emails available to me.

Can I as an owner object to the motion being a breach of the committee’s so called “good faith” requirement (s. 260). Are there other sections of the SSMA that I can point to showing the committee failed the owners?

Any thoughts?

Thank you.

[TrulEConcerned]

I suggest you closely read Schedule 2 in particular as it relates to holding Strata Committee Meetings. If you find that the requirements of a strata meeting are not being  adhered to by the strata committee and/or the managing agent (if there is one) , I suggest you apply for Mediation by NSW Fair Trading, see

https://www.nsw.gov.au/housing-and-construction/strata/disputes#domediation

If your committee is behaving this badly regularly, then apply for Mediation (with the OC) ASAP.

Do not warn your committee of your action. If you do, they will no doubt ask you to withdraw your application.

Do not wait to apply as it takes some time from you applying to when the Mediation takes place.

[TrulEConcerned]

Hi nixjet,

Thanks for the reply. Most stratas go through brokers these days I hear because many insurers will not deal with the owners themselves.

As to your specific comment: I did approach the broker asking about the move to a new insurer and whether he offered to committee 3 quotes because the owners did not see three quotes. Or even one quote. As mentioned earlier, my investigation revealed that a new insurer was chosen by the committee and the premium was paid in secret.

The broker wrote back to me that he did not have the answers and referred me to the committee and strata manager.

Seems like he doesn’t want to put anyone’s nose out of joint. Oh, and keep doing what’s needed to remain the broker.

[TrulEConcerned]

@Jimmy, thanks.

@Kaindub, my issue is that the former insurer hinted that she will not insure for the coming year because the strata scheme failed to attend to fire orders. I want to know why? Was the strata manage sleeping at the wheel?

[TrulEConcerned]

My recent experience with an OC and agent doing what he is told by the OC may help you.

Apart from seeking redress at NCAT for the failure of the OC, you can also complain to NSW Fair Trading about the conduct of the strata manager.

His/her license is governed by the Property, Stock and Business Agents Act 2022 and its related Regulations (2014 & 2022). He must abide by the rules that govern his conduct. Note, this has little to do with NCAT.

If you think he/she was or is dishonest or violated a term or terms of his/her strata management agreement – these are from memory some of the rules – you can make an online complaint at the Fair Trading website.

I made one, against a strata agent a few months ago.

The system is as follows:

NSWFT will examine a complaint and seek evidence from the complainant and the target of the complaint.

If they find the complaint has merit they will investigate and may find the agent did not act as required.

Assuming NSW FT  takes action for what they call “non-compliance” with the legislation, they are forbidden tfrom revealing what action they took. I wonder, who wrote the legislation? Strata managers?

My complaint was upheld and after a little prodding  I was told that non complaint conduct was identified by NSW FT and action (as per the menu of possible actions NSW FT can take) was taken.

I have no idea what NSW FT did but they must have rattled his cage sufficiently as he quit managing the strata soon after being contacted.

Then again, some may say the two events are not be related.

So how to complain:

Go to

https://www.fairtrading.nsw.gov.au/help-centre/online-tools/make-a-complaint

and on the page scroll down until you see a tab with

Go to real estate and strata complaint form

on it

click on that tab

complete the form. It is straight forward.

If I may suggest: lodge your complaint ASAP. If you have evidence handy, attach it where asked by the form. If you don’t have it handy, lodge the online complaint anyway. Send the evidence when you’ve assembled it. Sooner rather than later.

Good luck

 

 

[TrulEConcerned]

I would like a clarification from anyone: assuming there is a by law forbidding pets from the  common property without their owner or someone in control of the pets, is it correct to say that an OC may but is not obliged to enforce a by law?

I ask because if an OC is not obliged to enforce it, what use is it?

[TrulEConcerned]

Hey Jimmy,

Thanks for the clarification.

Your definition is what I was moving towards, but was unsure given online sources that I came across in NSW, where I reside and from sources in Victoria, were not crystal clear.

I will act as you suggest and will limit my submission to only a handful of orders sought. That should help the Tribunal and the respondents. And me.

FWIW, I learned two interesting things at the Directions Hearing.

(1) That I can amend my complaint by adding new orders to my initial paperwork, but the respondents have the right to challenge the additional orders if they can prove that I was “out of time” when adding new orders.

If NCAT says the respondent can do that, I accept that is their right. But if I feel the additional orders are very important, I surely can apply for them separately i.e. under a fresh application. Right?; and

(2) NCAT is and remains – as I read in this forum as well as on solicitors’ blogs over the years – prima facie not enthusiastic to order a compulsory strata manager. Unless, I suppose I am able to offer an abundance of evidence that there is no better alternative to compulsory management.

 

[TrulEConcerned]

Hi Papa Smurf

Thanks for your reply.

It is incredibly confusing as different  websites hint at different definitions.

Maybe I should have mentioned the other orders NCAT made at the time, one of which states that a month or so after I provide the “points of claim” to the Tribunal and Respondent that:

The applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents [here NCAT lists items eg photos, receipts, emails etc] on which the applicant intends to rely at the hearing in …..April

I could be wrong but the more I read it the more that at the initial step is for me to provide the Tribunal with a list of what I want and the law to justify what I want. And that at a later date I am to provide the Tribunal with “documents” which include I believe evidence. I write this because if I provide evidence in the next few days, what am I provide in respect of the “documents” order.

Does that make sense?

[TrulEConcerned]

Larchbold

1. You mention you want to appeal. Will you do that at NCAT or the local court?
2. If you go to the local court and win, you are likely to have your legal costs paid for by the other side, the OC.
3. You mention your lawyer, who I understand you want to represent you. Is he a strata expert?
4. If not, have you considered a strata expert (which you could Google)? Or perhaps contact a strata expert that  sponsors this website?
5. I suggest you summarise your case in no more than a page: list the history of events and what you want done, contact 3 lawyers and obtain quotes.

 

[TrulEConcerned]

Hi Gaelle,

As to the matter of “co-owner” or “joint owner” i.e more than one person owning a lot….my experience may assist you.

1. At several times owners and/or a co-owner self nominated for election. Even in the most appallingly run scheme I am involved in, this was never a barrier to being a candidate for election. Sure at times some folks objected that the self nominees were not nominated in their words “according to law”, but even then the chair said “ok, then I nominate Mr So N. So. Now can we vote”? (Frankly I had no issue with self nominations); and
2. The most cunning executive of a committee (of 7) – in a strata with 7 lots, one member per lot – one time pulled a fast one at an annual general meeting. She suggested one lot with 2 owners each be nominated and run for election (so that lot would have 2 members on the committee) and that the person with the least amount of votes amongst the other 6 lots would be tossed off the committee to make room for the joint owners. Given the numbers, the SC was a de facto OC, I smelled a rat and while I did not know what legal grounds I had, I made clear that if this vote passes I will do my best to see the matter run on A Current Affair or similar, where the committee members will be contacted by the program for comment. I will see that a chair is available at the interview and if they don’t show up, the chair (with their names) will be empty. Not only did the committee Secretary not proceed with a vote, he rewrote history by withdrawing the motion from the agenda (something I doubt is legal once an agenda is distributed and the motion about to be voted on). Naturally I did not pursue the matter at meetings or at NSW FT and it was never repeated by the committee.

 

[TrulEConcerned]

1. The following, like all advice given on this site…  is not legal advice but are opinions of those persons who have experienced situations like you are describing. On that basis, I can share with you my difficulties in a similar situation and fill you in on what I did to address the matter;
2. Any owner can in his/her name seek mediation with the OC via NSW Fair Trading. If you want to identify a SC member or members as the problem, list on your mediation application form your lot number (Gazelle as the contact) V The Owners SP XXXX and Your lot number (Gazelle as the contact) V Mr Secretary and Mr Chairman in their respective personal capacities (s. 260);
3. Mediation is a prerequisite for going to NCAT;
4. The OC, the individuals or the agent in their stead may attend mediation or not. They may agree at mediation to do something or not. They may agree and then not follow through with his/her/their/it’s “settlement agreement” reached at mediation;
5. In order to save you time and arming you with all the paperwork needed for a possible NCAT hearing, ensure your mediation application covers as much ground as you can manage. For instance, look at the SSMA and list every section you feel was violated: not giving notice of SC meetings; holding a SC meeting when a General Meeting should have been held; bad faith exhibited by a lack of quotes, decisions made in secret and not giving owners time to discuss the matter etc;
6. Lodge your mediation application ASAP because it takes time to get a meeting date. Emphasise on the first page if the matter is URGENT;
7. Now as a separate matter, complain about the strata agent to NSW Fair Trading. He/she is licensed under the Property & Stock Agents Act. A key requirement of agents is honesty, in your case from what you write the agent seems to be lacking it. Go to the following

https://www.fairtrading.nsw.gov.au/help-centre/online-tools/make-a-complaint

scroll to

real estate, property management and strata

click on it

then go to

real estate and strata complaint form

This is an online form where complaints against strata agents can be lodged and the yardstick is the Act under which the agent is governed (Property and Stock Agents)  and not the Strata Schemes Management Act. One tip: identify WHAT poor behaviour he/she has exhibited, eg dishonesty, and offer truckloads of evidence. That will convince NSW FT to call him or email and query his behaviour. If you can show a pattern over time of shady behaviour eg never returning calls or emails etc, throw that into the mix. You must also mention that he knew the matter of common property repairs/replacement is NOT a matter that can be decided by the SC but it’s an OC matter that must go to a general meeting of the owners. He failed to follow procedure by not listing the works on a general meeting agenda and holding such a meeting. He has failed to perform his duty as expected.

Good luck.

[TrulEConcerned]

In one strata I am involved in some folks wanted a storage facility similar to what you are after. Most residents as well as the committee were ultraconservative in their views.

So one owner suggested that she understood every owner had a right to install a cabinet in his/her car space, which may be a double deck (ie affixed to the wall and a car parked between the cabinet and the edge of the allocated car space (restricting cars to be no more than “medium” sized) or installing an over car cabinet (again, fixed to the wall, but this time allowing the car to make full use of the car space as the single deck cabinet would be above the car and not using more than a few cm of the car space for the installation).

In both cases the installation made full use of the car space’s width.

A compromise was reached that only one installer/supplier was to provide the cabinets and two models of cabinet would be permitted (double and single deck), so that the garage would remain looking uniform.

So far plenty of owners have installed such cabinets, which can hold a great deal and, should you ever relocate, they can be disassembled by the installers.

From memory the cost of a double deck (supply & install) was $4k

When proposing this to your committee, obtain brochures and prices, so they have something to tangible to consider. Point out the advantages I list above.

 

[Author]

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