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Before seeking a strata lawyer as Jimmy suggests, you could have a look at the building’s by laws which may contain either an all encompassing by law for air con units or a by law per application for an air con unit which may have required meeting certain criteria. Assuming you find such by law(s), pass it to the lawyer.
Make sure you’re comparing apples with apples. Assuming you find evidence of by law(s) covering air con units, be sure that the system being considered for installation and where it will be installed it is identical to what was approved in the by laws. If you don’t have a copy of the plan for installation from the supplier and installer, then you’ll need to get it. Ideally the plan will reflect what’s in place in other units. It should feature a similarly powered, similar brand with same number of rooms being air conditioned in the unit, using the same common wall as a unit above or below your Mum’s unit. If so, it is hard to see in what legal grounds is the objection.
Jimmy T is correct when he writes:
You (TrulE) seem to be implying that the owner can choose between Fair Trading and NCAT. This is not an either-or choice. Except for in a small number of exceptions, you MUST seek mediation at Fair Trading before you can expect NCAT to be involved.
To clarify, I recommended Mediation because the Divanhey mentioned in her post that she was told that the Tribunal was an option. It seemed to me that she was unaware that Mediation is also an option. As Jimmy T notes, Mediation is often a necessary prerequisite to going to NCAT.
Hi Divanhey,
I empathise with your situation.
In the past I too (for other matters) have been directed to the (NCAT) Tribunal. A process that is long winded, bothersome, requires an effort to prepare for and is not cheap. And even if you have all your ducks lined up, the result at NCAT is often a lucky dip.
May I suggest instead you approach NSW Fair Trading (telephone 13 32 20) and ask for a Mediation session. Fair Trading will explain this in detail, You can also go to their website, https://www.fairtrading.nsw.gov.au/, but I suggest you call them first.
The process requires you to fill in an online form containing your position. You email the form to Fair Trading and a few days later they will email or call you with a Fair a time they selected for the Mediation between you and the other party, with Fair Trading staff hovering around to help reach an agreement. Your complaint will be sent by Fair Trading to the other party.
This process:
1. Is free, whereas NCAT costs $27 (if you’re an eligible pensioner) or $108 if you’re not.
2. Your neighbour getting an email, letter or phone call from Fair Trading will show him or her you’re serious
3. While your neighbour can legally ignore attending Mediation, your next step can be NCAT where you can mention you tried Mediation but he or she did not bother attending.
One more thing: both Mediation sessions and NCAT hearings put you in a good position if you have been “REASONABLE” in your attempts to bring the matter to the other party’s attention and that you’re fair minded in reaching a solution. Before you apply for Mediation (ie fill in the form) I suggest you write (letter or email) to your loud neighbour complaining of the noise and making clear how it impacts you: eg given the state of your health, the aggravation and stress caused by the noise is a concern to my general practitioner (assuming the GP agrees with your view). Send a copy to the managing agent of your building, chairman of the strata committee and your GP.
This way the neighbour cannot say he or she did not receive your email or letter.
Good luck.
I have similar problems with the portal not containing ALL the documents that should be there.
If I were you, I would email a polite request to the Strata Mgr as follows:
“Dear Strata Manager,
I write from (insert your unit number here).
You may recall I recently sought details of a pmt made by the Owners Corporation (via the Strata Committee) for work on a patio (insert unit number here). Specifically I am after a copy of the relevant invoice, paid on or around (insert date).
Sadly, I cannot locate this invoice on the portal to which I was directed. Please inform me where on the portal is it located. Maybe I was not using the portal correctly?
In the event that the invoice is not on the portal, please indicate when I can access the strata records, which I presume are kept in your office. Surely the original invoice is located amongst those files.
I look forward to your reply”.
Copy the email to the person on the strata committee you believe pulls the strings. That way, your email, sent to two parties makes it hard for both to sit on it and ignore it. After all, could they both say they didn’t receive it?
Good luck.
Good day Hyacinth,
Welcome to my world. I have exactly the same issues as you have: being an owner but not on the committee and being denied information. And in my case, I discovered payments being made that were not approved by the OC as they should have been.
After some argy-bargy with the committee and the managing agent, I recalled what I learned in first year accounting: two vital documents which every managing agent or committee treasurer have in their possession: the Cash Payments Journal and Cash Receipts Journal. These are listings of every single payment made by and receipt deposited into the strata’s accounts.
Note: this does not include actual invoices, it is a list of money in and out of the strata’s bank account. And in my case and in that of a friend’s, in another strata, the listing does not reveal who was paid or who paid into the strata.
That said, I suggest you ask for the following:
Dear Managing Agent,
Please email me the Cash Payments and Cash Receipts Journals for the strata for the period 1JAN21 to 30JUN21. I have been informed by NSW Fair Trading that I have a right to such information.
Thank you.
Once you have these documents, you can
(1) Search the listing (which should be only a few pages long for a strata of your size and a 6 mth period), establish what payments you want to look into further and then you can
(i) cross reference a payment made by the strata to any payments approved by the committee at a meeting AND
(ii) ask the agent for further information on any given payment or receipt if the committee did not approve any payment at a meeting or if the approval in the meeting does not clarify, to your satisfaction, who was paid and why
When you have listed all of your concerns for that those 6 months, email the agent with your queries PAYMENT BY PAYMENT and RECEIPT BY RECEIPT with a CC to the committee. Give them 10 days to reply.
Once you receive your response from the agent or committee, I suggest you thank them and ask for a copy of the Cash Payments and Cash Receipts Journals for the strata for the period 1JAN20 to 31DEC20.
NB: Sir Humphey is spot on when he states the hubs/portals offer “high level” information only ie aggregated. This is of course no use to anyone who wants to know about specific payments or receipts. Case in point: I could see that IN AGGREGATE insufficient levies were paid to a strata in a particular quarter. Such data is pretty useless really when I wanted to know who exactly was in arrears.
Good luck.
The NSW gov’t released what is called the Model By Law for pets. That is, the go-to wording if a strata does not want to draw up its own by law.
The overarching expectation is that by-law cannot be harsh, unconscionable or oppressive. That is, a resident can no longer have his/her request for a pet be denied by the Owners Corp without reasonable justification.
The NSW Fair Trading website mentions:
The model by-laws provide owners corporations with options to control whether pets are allowed, and on what terms. For example, the owners corporation may choose to have a by-law which:
- allows owners to keep a pet and simply provide 14 days notice from when the pet has started living on the lot owner’s property, or
- allows a pet with the written permission of the owners corporation and the owners corporation cannot unreasonably refuse permission. If they do refuse, they must give the owner written reasons outlining why the pet is not being permitted.
In all cases, the lot owner must still supervise their pet, clean any common property that is soiled, and ensure their pet is not noisy or negatively impacting on other residents. In rented strata properties, a tenant always needs to first obtain their landlord’s permission to keep a pet.
I would expect the Owners’ Corp to ask you to agree in writing to the above terms (or similar terms if it’s preparing its own by law) and then wave the birdie through.
I cannot see a reason why a caged birdie would be refused. After all, it’s not a large and loud dog with very poor social skills whose behaviour could negatively impact on others in the building.The following points come to mind:
A. Sujenna’s suggestion of asking the tradies how long they will take I think is a non starter. After all, they are employed by the OC and the OC pulls the strings. The post office for an owner’s or tenant’s concerns with the speed and noise of these works is the OC and not their contractors;
B. Sujenna’s suggestion of going to work in a library is, at least in Sydney, a non starter as public libraries are to the best of my knowledge closed;
C. I recall speaking to a lawyer years ago when the OC undertook repairs which caused a friend distress (given the noise) and was told, in reply to my query: “the lot owner is considering going to NCAT to seek compensation from the OC – and pass on to the tenant – for the effect of the works on my friend (the lot owner’s tenant), that “she’s got zero chance of being awarded compensation given the OC’s works are in accordance with their duty to maintain assets”. That was of course not in a period of lockdowns. I think you have an arguable case to NCAT in claiming the episode taking place during a lockdown caused you “hardship”, for the duration the works were on foot notwithstanding they may have ceased on account of NSW Gov’t directives on construction activity, see
RESIDENTIAL TENANCIES ACT 2010 – SECT 104
Hardship to tenant–fixed term agreements
104 Hardship to tenant–fixed term agreements(1) The Tribunal may, on application by a tenant, make a termination order for a fixed term agreement if it is satisfied that the tenant would, in the special circumstances of the case, suffer undue hardship if the residential tenancy agreement were not terminated.
(2) The Tribunal may, if it thinks fit, also order the tenant to pay compensation to the landlord for the landlord’s loss of the tenancy. The amount of compensation must not exceed the amount specified as the applicable break fee for the tenancy under section 107.
(3) The landlord must take all reasonable steps to mitigate the loss and is not entitled to compensation for any loss that could have been reasonably avoided by the landlord.
(4) A tenant may make an application under this section without giving the landlord a termination notice.
(5) The Tribunal may make a termination order under this section that takes effect before the end of the fixed term if the residential tenancy agreement is a fixed term agreement.D) On 16JUL21 NSW Fair Trading released the following, which may be of interest:
As most of us know, NCAT members can rule differently on the same matter. You mention Member Vrabac.
For what it’s worth, I have been to NCAT a few times (mostly about consumer issues but also strata) and remember some of the Members who presided over my cases.
I recall two in a favourable light inasmuch as they were very fair, extremely attentive to details and were – from the point of view of a layman like me – as Americans are fond of saying, as honest as the day is long (i.e. they were very honest). I remember in the case which I won, my opponent at the time (a corporation) did not appeal the Member’s decision, presumably because they could not find he made any errors. (Others may argue that they did not appeal because the time and money spent appealing exceeded the sum for which they were found liable).
Member Vrabac is one that I recall favourably, so I would hold his judgement in high regard.
A few things things come to mind:
1. Make clear to all parties the effect (if any) the slamming noise is having on you. Do not be shy in expressing if the noise is bothering you, separate to the physical damage you mentioned;
2. By all means write to the committee about the damage you have seen. Photographs will help. If nothing is done, the damage will only get worse and you want to be on the front foot in documenting the extent of the damage, the regularity of the slamming and the time taken by the committee to attend to the damage (let alone complete repairs);
3. As Jimmy notes, ask the committee to install or replace any door closing mechanism on your neighbour’s door. A good idea is to suggest it for ALL doors in the building. A well adjusted mechanism should ensure a door closes softly. You could as Jimmy wrote, bring to the committee’s attention that there is no point repairing the damage if the door in question will be without the door closing mechanism. Folk should also be advised not to interfere with the mechanism as adjusted by the Owners’ Corp’s contractor; and
4. Most stratas include a by law on “nuisance”. By laws govern behaviour by occupiers in a strata. The door as you know is common property. The term “nuisance” is defined in the Strata Schemes Management Act 2015, as follows:
153 Owners, occupiers and other persons not to create nuisance
(1) An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in a strata scheme must not–
(a) use or enjoy the lot, or permit the lot to be used or enjoyed, in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot (whether that person is an owner or not), or
(b) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of the common property by the occupier of any other lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the common property, or
(c) use or enjoy the common property in a manner or for a purpose that interferes unreasonably with the use or enjoyment of any other lot by the occupier of the lot (whether that person is an owner or not) or by any other person entitled to the use and enjoyment of the lot.As a non lawyer, it seems to me that s.153 gives you certain rights, which you should go ahead and exercise.
Let the committee know that the door slammers are breaching the “nuisance” by law (assuming you have one) and that you expect the committee to enforce the strata’s by laws.
Turn the heat up on the committee: mention that the damage, as documented by you, if unattended could well be a hazard (at the very least it will be an expense of the Owners’ Corp) and that the noise from the slamming is interfering unreasonably with your enjoyment of the lot.
Jimmy mentions going to NCAT to force them (landlord/agent) to reduce your rent or allow an early termination of your tenancy with no penalties attached.
I experienced a similar situation a couple of years ago.
I, landlord, was approached by my tenants for either lower rent or early termination of the lease, because noise from a neighbour’s renovation was making life (working from home) impossible for them. Soon enough they ditched the request for lower rent and just wanted out of the lease.
I was taken to NCAT and the tenants won the right to terminate the lease early without penalty.
NCAT agreed with them citing “loss of peaceful enjoyment” as the main complaint and it is – who’d have thought – the landlord’s duty to ensure his tenants have undisturbed peaceful enjoyment regardless of whether he is disturbing them or someone else is. At least that’s what NCAT determined.
It seems to me that the cheapest way out of this for all the landlords in the strata would be to postpone these works until after the corona lockdown is over. If your landlord or agent was smart, he/she would give you an one off credit against the rent AND postpone the work.
If such postponement is not on the cards, then as Jimmy suggests, call the Tenants Union and query your rights, in particular under the Quiet Enjoyment principle.
A side issue for your landlord/agent is to establish what obligations if any the OC owes your landlord regarding this horrible situation.
According to the Daily Mail
the building is in Botany Road, Bondi Junction.
But a quick Google search in fact reveals it is Botany Street, Bondi Junction which can be discerned from the less than detailed photo of the said building on the Daily Mail’s link.