[TrulEConcerned]

Thanks for your replies Jimmy and LKY. I will reply to them very soon.

BTW this is not the first time I discovered dodgy pmts being made by the Tsr (acting through a managing agent puppet). In fact I sought the strata go into administration a couple of years ago but my application was not well written and the Tsr, a lawyer, writing on behalf of the OC, convinced NCAT (on the paper not in a hearing) to not prder administration but to keep things as they are.

 

[TrulEConcerned]

Hi VicRes

You mention

So if the treasurer paid $10,000 and then received a refund of $10,000 do they still owe the $1,000 in levies?

Allow me to clarify: Tsr paid $10,000 then $1,000. Two months later the $10,000 was refunded (or so it seems). The $1,000 was the correct levy due.

It would be interesting to see exactly how the transaction was processed. Was it returned to the same account from which it came? Paid in cash? Or transferred to a third account?

The document I found, ie the Tsr’s levy ledger, does not answer your queries. Should I ask the new managing agent to inspect the records in her possession to answer your queries?

If transferred to a third account it could be viewed as money laundering with the money initially coming from the treasurer’s account to a ‘clean’ business account (the OCs) and going to a third account where there needs to be ‘honest money‘.

I do not believe it. You Sir (or is it Ma’am) are a mind reader. I asked myself that question when I saw the $10,000 was paid by the Tsr just before financial year end.

If cash was involved at any stage then there are huge red flags and follow up is required.

Could the new managing agent when inspecting the records determine if pmts to/from the strata’s accounts were in cash or not? Could the managing agent ascertain if the a/c the $10,000 was paid from is the same as where it was refunded to? Can I compel the managing agent to investigate this important issue? What if the SC forbid her or discourage her from investigating this? After all she reports to them.

Does the strata manger have the authority to withdraw that much (if any) money? If there is a requirement for a second approval was the treasurer the person who gave that second authority? If so there is a huge conflict of interest noting their initial payment of that amount

I know that anything >$500 [or so] cannot be withdrawn/paid by the ex-managing agent without approval by the SC, which in fact means the Tsr because the Chair is a rubber stamp. So your point on conflict of interest is a valid and a good one.

Finally, is this query related to another of your threads?

Yes, in as much as it relates to the same managing agent, but no, as I am also interested in the levy ledgers of all proprietors given some are slow to pay (in fact at times they are unfinancial) but that fact is hidden by the SC from the OC, for reasons unknown.

[TrulEConcerned]

Jimmy LOL

[TrulEConcerned]

Thanks for the responses.

Before addressing them, let me clarify something.

According to his ledger, the Tsr paid $10,000 into the levy account. A few days later he paid $1,000 (the regular levy).

According to the managing agent’s cash payments journal, a month later $10,000 was paid by the OC. No mention is made as to who was paid or why.

Several weeks hence, the Tsr’s ledger shows he was paid $10,000 by the OC.

As I see it, the Tsr for his own reasons, paid $10,000 more than he should have and that $10,000 was repaid to him 2 months after his payment. Why the Tsr over paid and why it took 2 months to repay him, I do not know.

But its the other $10,000 that was paid by the OC for reasons unknown to persons unknown that stinks.

The new managing agent seems disinterested in looking into the matter. The fact that the SC is ignoring the matter (because the new agent doesn’t blow his nose without the SC’s approval) makes me think someone on the SC may be up to no good.

[TrulEConcerned]

Good advice, thank you.

This reminds me of some time ago when I asked for lot balance reports per lot showing what was due and what was paid. Before the agent could even open his email, the Tsr told me that giving such data was “not possible due to privacy laws”. I told him to stop with the BS, for I knew and Fair Trading confirmed that the Act makes clear that ALL records in the possession of the OC must be made available to lot owners when requested. I told him I was surprised that as a solicitor he could not understand the plain English written Act.

[TrulEConcerned]

Hi

An update folks.

At NCAT I sought my tenants pay the (agreed to) break fee as they broke the lease 6 mths early.

The Tribunal Member said that while they did break the lease, the noise from the neighbour renovating was so intense so as to render the leased premises as “uninhabitable” and that means the tenants can scoot away scott free.

The Member suggested I take the offending neighbour (who caused the nuisance) to the local court.

Boy was the offending neighbour hard to track down!

Anyway, I finally tracked him down and served on him a Statement of Claim arguing he owes me the break fee. Perhaps I should have claimed the 26 weeks the premises was vacant as the tenants left unannounced a few days before they knew I was going abroad.

The other party defended his position on the renovations by writing that he acted in accordance with the local council and OC requirements.

We have a court date, mid January for what is called a pre-trial review.

Anyone know what outcome is likely at the local court?

[TrulEConcerned]

My questions are:

How many weeks did the noise go on for?

How many of those would you say was LOW LEVEL noise?

How many of those would you say was MEDIUM LEVEL noise?

How many of those would you say was HIGH LEVEL noise?

Are you in NSW?

Did you in writing offer to lower the rent from $720pw to $500pw?

[TrulEConcerned]

A few things come to mind:

1. Whatever the Strata Act says may be interpreted differently by different NCAT Members:

2. How long did the noise go on for? How many days? How many hours in the day?

3. How long did you propose she pay $500pw?

4. The fact that she stopped paying rent but returned to paying rent only after she rcvd the NCAT notice, will on the balance of probabilities be seen by NCAT as her complying with the term of the lease. Did she pay up all her outstanding rent? I had a tenant who refused to pay one month rent and was told by NCAT that so long as he was not in rent arrears by the end of the lease the tenant is in compliance with the terms of the lease.

5. Understand that many tenants (and for that matter landlords and neighbours) are opportunistic. It costs her $49 in NSW to apply to NCAT. In her mind the NCAT process has a good payoff: possibly:

THE UPSIDE

#weeks of noise x $weekly rent (and maybe a small quantum of other costs), versus

THE DOWNSIDE

(capped at) $49

6. How much $ is she seeking from you at NCAT?

[TrulEConcerned]

SGB advised that:

1. Court is the option because I have no case against the OC which could be heard at NCAT. The implication is that NCAT doesn’t hear claims for the compensation I seek;

2. The law compels the OC to repair that which needs to be repaired and if a loss is sustained by a lot owner due to the OC ignoring its obligation to repair say a leak, then the loss can be claimed by the lot owner from the OC at NCAT. I understood that to mean that there is no mention in the Strata Act allowing me to chase the OC for compensation/damages sustained by me following the OC doing its job;

3. If I win at court, say my entire claim of $18k, I should expect costs awarded to me to be no more than 25% of what I win i.e. $4.5k. So in my mind, the cheaper my legal counsel, the less out of pocket my cost. For instance, legal fees of $7k and I win $16k, the court will possibly award me 25% or $4k, so my out of pocket is $3k. SGB indicated costs of $10-15k. Of course I have no idea what part of that is SGB’s costs and what part is the court process’ costs are;

4. If I want to go after the other lot for my economic loss then the venue is a court.

[TrulEConcerned]

Thanks to both of your replies.

As to costs, it is my understanding from attending NCAT a few times that costs are most often NOT awarded to either side, unless something out of the ordinary occurrs as Jimmy indicates (foot dragging etc).

If I take the matter to court I understand that some of my costs will be awarded to me if I win and the quantum of the award is a function of how much compensation I receive.

This means, correct me if I am wrong, my out of pocket expenses are far lower if I find a cheaper lawyer (one whose fees and court fees are in the 4 digit park), rather than the 10-15k in costs, which is what I was quoted.

Kaindub: You ask if I want to fight on principle. The answer is “yes”. Principally my standard of living has tanked with $18k in rent lost because a neighbour renovated, sold at a profit and drove my tenants out like cattle to the abbatoir. Oh, he didn’t even bother replying to my solicitor’s letter of demand.

[TrulEConcerned]

Hi Jimmy

Thanks for your reply and sorry I am late in responding. I just read your post.

A few days ago, before reading your post I contacted two law firms. One did not address my questions. The other, Sachs (that I approached after seeing their advertising on your website) indicated:

1(a). I have a case against the other lot but not the OC;

1(b). I have no case against the OC because the OC is bound by the Strata Act to address repairs etc. Although it was not made clear to me why I must wear the economic loss suffered from the OC’s work (note there were two renovations: the OC repaired a balcony and another lot owner comprehensively renovated his unit)

3(a). As to action against the other lot, the venue I was told is court and not NCAT;

3(b). The cost of court action is anything from $10k to $15k.

3 (c) Even if I win all my $18k I seek, I can recover no more than say $4.5k and that is if I win.

I wonder if another lawyer would see things differently. That is, charge less or take the case on contingency or take the matter to NCAT.

After all, it doesn’t make sense to me to spend up to $15k to maybe win $18k.

Any thoughts?

[TrulEConcerned]

Thanks for your replies. I will consider them tonight and get back to you with queries.

On the issue of the timber floor’s compliance (or non compliance) with the by law, I forgot to write that:

1. Is it too much to expect the SC to have evidence that the timber floor complies with the by laws. Such evidence could come from the renovator or from the SC’s own experts. And the evidence should be able to stand up to scrutiny at NCAT;

and

2. The renovations were made by the owner/builder who knows the law or should know it.

[TrulEConcerned]

Another angle to the AirBnB fiasco that you could explore is when tenants offer accommodation to guests by advertising part or all of the premises as available, against the express wishes of the landlord. I had such a nasty experience recently.

[TrulEConcerned]

Thanks for your reply.

The text of the by law in the strata is as follows:

Floor Coverings

An owner of a lot must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot.

This by law does not apply to floor space comprising a kitchen, laundry, lavatory or bathrooms.

In Nov 2017 I wrote to the Strata C’tee informing that wooden floors were installed in the apartment above mine and asking the Strata C’tee if the installation complies with the by laws. I asked them to act swiftly in case the apartment will soon be sold.

Surely if the flooring complies with the by law then (a) the SC would so advise me and (b) the SC would advise HOW it complies (acoustic insulation?)

Guess what? No response received from the Strata C’tee or managing agent.

And noise does travel from that apartment to mine.

The offending apartment is now advertised for sale.

You write

You may have to ….get an acoustic engineer report to establish that the noise from upstairs is excessive and breaches both by-laws and strata laws on your right to the peaceful enjoyment of your lot.

1. How is “excessive” defined? I think the by law makes reference to noise transmission and doesn’t indicate that noise under a certain level is allowable. But maybe I am misreading the by law.

Why must I spend $ on such things? Surely if the noise producing owner is adhering to the by laws (after all the SC ticked off on his renovations), surely evidence must be presented by him or the SC that the wooden floors were appropriately treated so they comply with the by law?

For the record, I have a witness who was in my apartment recently and heard footsteps very clearly walking up and down the length of the apartment. Who know? Maybe they were doing circuit training?

[TrulEConcerned]

I have not used them and wonder how they can identify your particular property. Say you own an apartment in a block and your tenants decide to “host” guests via AirBnB. As my tenants did.

The adverts I see online at airbNb do not list the number of the apartment let alone the building number. So how exactly can anyone identify your property other than if the tenants are using photos of items/rooms with which you alone are familiar?

I can’t see much value in paying someone $43.40 to follow up on your tenants on 3 active sites.

[Author]

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