[TrulEConcerned]

The Forum post mentions Safe Work (NSW) was successful against the employer of the deceased. Your post shows that Safe Work (NSW) was also successful against the OC. Well done Safe Work (NSW)! This should be a wake up call to the many clowns sitting uselessly on committees to realise the circus is closing down and that they have real world obligations.

I hope the estate of the deceased sues the pants off each member of the SC personally.

And this, from the Forum thread, reposted here to avoid confusion – JT:

There is mention of proceedings under foot against the OC and MA.

It is unclear if this by the estate of the deceased or by Safe Work (NSW)?

Mention is made that:

On 5 June 2020 a number of occupants, not including Maluko, attempted to undertake makeshift repairs to
the gate. These repairs did not remediate the damage to the gate nor eliminate or otherwise address the
risk of the gate falling or collapsing.

Were these repairs authorised by the SC or OC?

Who knows? The makeshift repairs may have only increased the risk of a catastrophic event occurring.

 

 

 

[TrulEConcerned]

@Newcastle_SM

I am re-posting as I am unsure if my earlier post was sent.

Great to hear that the OC in question got a taste of reality. So many owners and committee members think that they have no obligations and don’t want to bother themselves with acquainting themselves with the law.

I hope the estate of the deceased sues every member of the OC or at least of the SC .

[TrulEConcerned]

The reforms regarding pets seem to be written by renters or by single dwelling residents (or owners).

Surely to get such reforms more broadly accepted by everyone, there should be two sets of bonds payable by renters:

For a tenancy without a pet, say, 4 weeks’ rent and

For a tenancy with pet, say, 7 weeks’ rent

After all:

1. Pets  can and do damage property and in such an event, even without a tenant damaging property or defaulting on rent, a 4 week bond will evaporate quick as a wink; and
2. Why would a rational landlord that is forced to accept the same bond from a pet owning potential tenant when a non pet owning potential tenant has to pony the exact same (current) 4 week bond?

[TrulEConcerned]

In my experience, pest control is related to vermin on common property and is arranged by and paid by the owners corp. If a landlord or tenant want their property specifically treated in addition to the common property, then the landlord or tenant would pay for that.

Does your lease mention pest control treatment?

If yes, then the question is why you agreed to such a clause.

If not, then regardless of whether you are asked to pay for the treatment, I believe you can reject doing so based on health grounds.
I suggest you (a) assume the landlord has offered to pay for the treatment (if there is no mention that you are to pay) and (b) write to your landlord along the following lines: “Thank you for the offer to treat the premises, but on doctor’s advice my state of health prevents me agreeing to treatment at this time. If my health improves and if my doctor believes that the chemicals will not affect me, at that time I will let you know”.

Ensure you have such a note from your GP dated before writing to the landlord.

 

[TrulEConcerned]

From my experience as an observer at meetings,  two things come to mind:

(1) The minutes must relate directly to the agenda item. Look at the wording in the agenda. Is there mention of the committee seeking authority to manage this issue? Is there mention of quotes to be obtained and the number of quotes to be obtained? Is there a cost ceiling mentioned? If the minutes diverge from the agenda item, a key question is whether the agenda item (the motion) was amended at the meeting prior to a vote taking place that takes into account the points listed in the minutes; and

(2) Often cunning committees at meetings seek a broad right from the OC to manage a forthcoming issue eg refurbishing common toilets, with the “details” (eg cost, colour scheme, bulding materials etc) to be “sorted out later by the committee”. The committee may seek input from the OC, but often the motion and minutes will not require such consultation.

[TrulEConcerned]

I have 3 questions on this and will ask them separately.

Shortcrust mentioned in her case all units paying for repairs. Jimmy pointed out that unit entitlements should reflect that units with a balcony have (or should have) different unit entitlements.

Question: If u/e do not reflect this benefit to a particular unit or units, can those who have similar (possibly identical) u/e argue that they are being triple disadvantaged? After all, they have no balcony; they have to pay so another owner can enjoy a balcony with no allowance for other owners to also use the balcony; and the share (of some other owners) of the upkeep is identical to the share paid by the guy with the balcony? If this is true, what can non balcony owners do?

It smells like a rort I heard of years ago. A developer keeps the said balcony unit for himself  to live in until he sells (or rents out)  and all the while his amenity (lifestyle) is subsidised by everyone else. Surely an exclusive use by-law obligating the balcony unit to pay for the R&M in exchange for sole use, would have been the right way to go about this. No?

[TrulEConcerned]

@Jimmy I agree with your view BUT when asked, the committee members in the strata concerned at first told me to “go talk to the manager”. So I spoke to the strata manager who was both unhelpful and uninformed. Then I returned to the committee telling them the strata manager was of no use. I was told that they ie, the committee, will look into it that get back to me.

They did, by phone a few days later, claiming they understand  “that if the motion doesn’t state the applicant is to pay the costs, then the OC pays them”.

Reflexively I wanted to ask them what is the basis of their “understanding”? But I wanted to hear from this forum first.

 

[TrulEConcerned]

I write from NSW and assume consumer law is similar in the Sunniest State of the Nation.

There are a couple of different ways of looking at this problem.

1. Take the matter to Fair Trading and accuse the landlord of deceptive conduct. He/she advertised facilities available inclusive in the rent which have never been provided. I don’t know what the penalty for that is. That’s something for you to look into and list in your claim for damages; or

2. Estimate the cost you would otherwise need to pay a gym to use similar facilities as often as you would like. Let’s say $40pw as an example.
(a) Go to Fair Trading and sue for $40 x number of weeks you have signed a lease. Seek an order for that amount to be paid to you; also seek compensation for the time and money it would take to travel to a gym, multiple times a week for the duration of the lease, say $25 pw;
(b) So if you lease is 52 weeks long, seek an order for ($40+$25) x 52 = $3,380;  and                                                      (c) Make clear in your submission that you are a reasonable person and even offered to pay to use the gym ie PAY AGAIN (because you already paid for the gym in your rent), but your offer was refused.

After all:
(1) But for the advertised inclusive gym facilities you would NOT have signed a lease at the rent offered; OR
(2) Had you known there were no gym facilities, assuming you liked the building, then you would have only agreed to a lower rent than the advertised rent. Taking into consideration 2(b) above, with no gym facilities you would have considered signing a lease if the rent offered was at least $65 less than what you’re now paying. Or possibly NEVER signed a lease with that landlord.

Note: the internal affairs of the building i.e the Owners’ Corp’s (“OC”) decisions on who can or cannot use the gym and any court matters relating to that are:

(a) Out of your control;
(b) Between a landlord and the OC or between multiple owners and the OC; and
(c) Frankly, are irrelevant to your dispute. After all, you contracted with one landlord and not the OC.  Your landlord has not delivered what he has charged you for, week in week out. For that he needs to compensate you.

[TrulEConcerned]

Sujenna wrote:

If I knew who the offender was with a CCTV footage we could curb the behaviour.

Two things come to mind:

1. In the interim, why not buy large CCTV signs and put them up in conspicuous places, such as in the foyer, outside the entrance and near the garage. Even without cameras, the signs will deter bad behaviour; and

2. Even with cameras, capturing an image of an undesirable damaging property does not necessarily mean he will be identified, caught, arrested, charged and sentenced. I think the police have other priorities. But when you do install CCTV, broadcasting their installation with signage should reduce criminal and other anti-social activity.

[TrulEConcerned]

You were lucky at mediation.

Speaking as someone who took an OC  to mediation (where agreements are not binding) and the NCAT (where in theory judgements are binding), I was let down in both cases.

At mediation the OC agreed to something and soon after ignored it.

I then went to NCAT where they were ordered to do the same thing, and do it within 2 months, but they ignored that order. Many months after the deadline set by NCAT, they finally did a ham-fisted attempt which had to be redone thereafter.

 

[TrulEConcerned]

Jimmy, I should have been more clear.

Your comment

However, if they are using their power to benefit their lots to the exclusion of others or prevent maintenance that would be a different issue.

is what I was alluding to. Evidence should be provided.

In regards to your comment

The gang of three could just as easily say that they are keeping disruptive troublemakers away from the levers of power.

In my experience at NCAT, I don’t think NCAT would buy such an argument, because it is subjective and cannot be proved.

[TrulEConcerned]

As I understand you:
1. There are 6 lots in all and
2. The 3 member strata committee (that existed prior to the AGM) want to remain in place for another year, to the exclusion of the 3 other lots who want to sit on an expanded committee.

If so, in addition to the recommendations by Jimmy, you could seek mediation on the matter by calling NSW Fair Trading on 13 32 20 and they can guide you on applying online. You could allege that the committee is breaching

s37   Duty of members of strata committee

“It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence”.

You could allege that limiting the committee to the same 3 people who comprised the previous committee benefits only those 3 because half the OC is impeded from carefully examining what exactly took place in the past and the same 3 it seems want to continue with their secretive conduct.

“What exactly are they trying to conceal” you should ask in your application to NCAT.

238   Orders relating to strata committee and officers

“1)  The Tribunal may, on its own motion or on application by an interested person, make any of the following orders—
(a)  an order removing a person from a strata committee,
(b)  an order prohibiting a strata committee from determining a specified matter and requiring the matter to be determined by resolution of the owners corporation,
(c)  an order removing one or more of the officers of an owners corporation from office and from the strata committee.

(2)  Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has—
(a)  failed to comply with this Act or the regulations or the by-laws of the strata scheme, or
(b)  failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office”.

If you argue that the 3 are not benefiting the OC (that is failing what is required under s. 37), you then can also allege that all 3 need to be removed because they breached s. 238 (2)(b). Specifically, argue that their united behaviour demonstrates a wholesale failure of diligence inasmuch as the 3 exhibit an inattentiveness to the needs of 50% of the owners.

In the ideal world, the 3 will be ejected from the committee and the other 3, including you, will become the committee.

 

 

[TrulEConcerned]

Sammy are you in NSW? If not, which state?

[TrulEConcerned]

In NSW I have complained to Fair Trading about a badly performing strata manager by pointing out he failed to comply with what is required of the realtor’s licence holder eg being honest. The complaint was pursuant to the Property & Stock Agents Act. My complaint was upheld and soon afterwards he quit as strata manager.

Call your equivalent of NSW Fair Trading and ask what legislation governs the CONDUCT of strata managers.

Tell them you wish to file a complaint.

Once you are made aware of the relevant legislation, have a look at the Table of Contents of the Act or Regulation for terms like “conduct” or “behaviour” etc.

Best of luck!

[TrulEConcerned]

@kaindub, thanks for the reply. From what I was told, the problem is way beyond one building. It is in several buildings in several streets.

[Author]

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