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Trule – as you too have experienced frustration with the decisions of the NCAT Tribunal, perhaps you’d like to send the details to Jimmy T in accordance with his recent post below (it can’t do any harm).
I too am becoming discouraged by some of the decisions coming out of NCAT which seems to be even more anti-individual than its unlamented predecessor, the CTTT, in its “Send In The Clowns” days.
As soon as I get back to Australia, I plan to start asking the Attorney General’s office how they can justify some of the stupid, unfair and ignorant decisions that have been coming out of this department that now comes under their aegis.
If any of you have any examples that you think are beyond reasonable explanation, please drop me a line, either online or via mail@flatchat.com.au and I will get back to doing what we started in Flat Chat 11 years ago – kicking ass and taking names.
Costa – Certificates of Currency are supplied and charged for by Insurance Companies, and $30-$40 is around the going rate for an electronic version delivered as a pdf even if you, as an Owner in the Scheme, apply for it directly.
Regarding the insurance commission received by Strata Managers, that should currently be declared within the terms of their Agency Agreement with Owners Corporations, but under new NSW Strata Legislation that’s planned to commence on 1 July 2016 all such monetary commissions will additionally require the Owners Corporation’s (O/C) agreement either under the terms of its Agency Agreement or separately such as at a General Meeting.
However (isn’t there always one of those) I understand that moves are afoot to amend the standard form of Agency Agreements to allow Strata Managers to increase their management fee to off-set the value of any commissions income that’s lost as a consequence of an O/C’s refusal to agree to those payments.
Mel – in this time of good will to all, I’m disinclined to be as harsh to you as I recently was to your Sydney colleague Edward, who like you regularly trawls for old topics to which to post with the prime intention of including not so subtle (and often irrelevant) references to your common business activity.
So if as with your post here to a 9 month old topic you can’t be of much help, then perhaps you should search for another forum as the means to publicise your business.
If I could I’d give you both one strike, but that’s Jimmy T’s purview.
cassamcgann – I’m afraid that’s correct if the offending owner knows their stuff!
To explain…. whilst a simple resolution (i.e. >50% in favour by a show of hands) by those entitled to vote incl. by proxy at your Extraordinary General Meeting is all that’s required for the Motion to issue a Notice to Comply (with a by-law) to pass, conversely if the offending owner knows their stuff and requests a “poll vote” [i.e. a vote determined by units of entitlement (UOE)] then a vote against by them, holding the majority UOE, is all that’s required for that Motion to fail.
A special resolution (i.e. >75% in favour by UOE) is not required, and in your circumstances would make no difference to the outcome.
However…. you do have two (2) further options:
1) If you have a Strata Manager who’s not influenced by the majority owner, and their Agency Agreement with the Owners Corporation delegates the function of issuing these Notices to them, then a formal request to the Strata Manager for them to exercise that delegation, signed by the complainant and the other two (2) owners, would be sufficient for them to do so. Ref Sect 45 and in particular Cl. 3
2) Record the details of the vote on issuing the Notice in the Minutes of the General Meeting, and then apply for Mediation of what would then amount to a dispute between the three (3) owners and the Owners Corporation over it refusing to properly operate and administer the Scheme, and specifically by it not enforcing its by-laws. Ref Sect 138 Cl. 1 & 2(a).
There are two (2) options for Mediation as the compulsory first step to resolving the dispute, the first is with the Community Justice Centre and the second is with the NSW Dept. of Fair Trading.
In order to assist with resolution of the dispute should it go to Adjudication, you and the other owners should make known your planned course of further action prior to the commencement of the Meeting should the Motion fail as you anticipate, and as part of the minuted proceedings I’d also give the owner concerned an opportunity to voluntarily comply with the Scheme’s By-Laws.
As you’re new to Strata, I’d suggest you also read THIS excellent publication from the NSW Dept. of Fair Trading.
Good luck, and welcome to Strata Living.
Isydowner – all the very best for the festive season to you also!
Re your comments on the NCAT, Jimmy T recently posted the following, so perhaps take him up on his offer……..
I too am becoming discouraged by some of the decisions coming out of NCAT which seems to be even more anti-individual than its unlamented predecessor, the CTTT, in its “Send In The Clowns” days.
As soon as I get back to Australia, I plan to start asking the Attorney General’s office how they can justify some of the stupid, unfair and ignorant decisions that have been coming out of this department that now comes under their aegis.
If any of you have any examples that you think are beyond reasonable explanation, please drop me a line, either online or via mail@flatchat.com.au and I will get back to doing what we started in Flat Chat 11 years ago – kicking ass and taking names.
Thanks for that feedback; best of luck with proceedings.
Regarding your comment about you and other Owners collectively paying via your levies for the Owners Corporation’s legal costs, it’s worth noting that acceptance of any quote for legal services that exceeds the lesser of an amount equivalent to $1,000 per Lot or $12,500 must be approved in advance at a General Meeting.
Tahiti’s heat and humidity hasn’t affected you Jimmy, because for what it’s worth I agree with you to the extent that if any changes on common property or lots affects the overland flow path of the property’s stormwater or the effectiveness of its inter-lot stormwater drainage, then all runoff should be collected and re-directed to the site’s stormwater system.
chesswood‘s first remedy must be to formally raise the issues with the Owners Corporation, and if that doesn’t (or hasn’t) achieve the desired outcome then an approach to Council can’t hurt, because as a minimum they may lean on the O/C and the neighbour to address the stormwater problem.
I’m becoming even more disillusioned with the effectiveness of the traditional means to resolve strata-related disputes in NSW (i.e mediation by Dept. Fair Trading and where necessary adjudication by the NSW Civil and Administrative Tribunal), and so I’ve again confirmed with the NSW Dept. of Justice that it’s Community Justice Program is still able to assist with mediation component of the process despite Service NSW instinctively directing inquiries to Fair Trading.
Jimmy and Waterworld – I’m not sure that the fire and resultant water damage compliments of NSW Fire & Rescue could (or should in these circumstances) be traced back to an active or passive screw-up by the occupant of the Lot.
I’m still inclined to use Strata Law to resolve this matter, where the Owners Corporation (O/C) has an unfettered responsibility to properly maintain and repair its common property, and the discretion to claim all or some of the costs of doing that against its building insurance.
So to reiterate the above and my initial response to Waterworld‘s question “…. should the ceiling, cornices and pelmets (all original) be repaired by the O/C insurer?“, my answer is that it’s the O/C that must have those repairs attended to, and whether or not to lodge a claim with its Insurer for all or some of the costs of doing that is a matter for it to decide and for you to keep away from.
Have regulations changed as to why the replacement lock should be different?
Ans: To my knowledge the only applicable requirement would be that the lockset should be able to be opened from inside your unit without the need for a key.
I am at a loss as to why the ceiling, plus walls, restoration (both concrete and plaster, all original) need to be carried out through my insurance and not Strata?
It still baffles me why I had to claim at all and risk higher insurance premiums when this event was not caused by me. Strata it seems can raise levies at their whim but can an owner deduct his costs from levies due?
Ans: An Owners Corporation (O/C) is responsible to properly maintain and repair its Common Property including that necessary due to any failure in or on those areas. Whether or not in the circumstances you describe your O/C seeks to fund those repairs in full or in part via a claim on its building insurance is at its discretion, but the fact remains repairs to affected areas of its Common Property such as ceilings and common walls is the O/C’s responsibility and I’m surprised that your contents insurer accepted your claim without first questioning the O/C’s refusal to meet its obligations under Sect 62 of the Act.
Who is responsible for cracks appearing on the balcony? i.e. the underside of the balcony above me. The cracks within my apartment are becoming more extensive ever expanding since the event
Ans: Maintenance and repairs to the balcony soffit and to common walls within your lot is the O/C’s responsibility, with the exception of re-painting the latter as that’s regarded as an Owners’ “removable surface”, just like floating floorboards are to a lot’s concrete floor slab (i.e. the Owners’).
Shercom – our resident ACT “Strata Guru” PeterC hasn’t jumped in as yet, so I can only suggest that you have a look at the Xero Accounting package that I’ve been using to self-manage our NSW Plan for the past 10 years.
At a cost of < $30/mth Xero provides automatic feeds from your Strata bank accounts, easy reconciliation that gradually becomes predictive, your own chart of accounts, the production of work orders, automatic generation of invoices for the collection of levy contributions, all the standard reports that you’d require (and more), and the distribution of everything in hardcopy form (for posting) and/or by e-mail.
I’m not an accountant and I learned to drive Xero within a few weeks with the assistance of their on-line support service that by the way is excellent.
ccgirl asked….
If I take my complaint to the NCAT do I address my complaint against the Executive Committee for not enforcing the by-laws or against the offending owner for breaking the by-laws?
Ans: Your complaint should be against the Owners Corporation (O/C) for not enforcing its By-Laws, but note that Sect 138 may only be used if the specific Breach that you’re referring to is not covered by any of the other Sects under Part 4 of the Act (i.e. 138 – 162), or if a formal / written request by you for the O/C, incl. via the Executive Committee (E/C), to enforce a By-Law had not be acted upon within 2 months. Note also that if you’re relying purely upon Sect 138, Cl. 2, then a minuted decision of the O/C or E/C not to enforce a By-Law would be considered as it “acting upon” your request.
and…..
From my reading of Sec 138 this only seems to apply if an Adjudicator has been appointed. Is this correct or am I missing something?
Ans: NO, you’d be seeking Orders from an Adjudicator if your attempt to Mediate your dispute with the O/C failed.
Edward said…. I don’t think that it should really matter.
Advocating that compliance with the Law doesn’t really matter is plain silly!
Like WorkCover requirements don’t really matter for your business provided you and your clients agree to do otherwise?
Of course that’s not the case with your business or with Strata Management either!
So speaking for myself, whilst I always appreciate relevant and constructive comments posted here, I really wish you wouldn’t regularly jump in with irrelevancies and not so oblique references to your self-storage business.
Thom – thanks for the Christmas Greetings, and right back at ya!
What I meant by the use of the phrase “neither is discretionary” is that compliance by the Executive Committee (E/C) with Sch. 3 Cls 6 & 12 and indeed every other provision of the NSW Strata Schemes Management Act (SCMA) is as you have observed, mandatory.
So it follows that if an E/C doesn’t comply with the SCMA by issuing Meeting Agendas and Minutes or indeed anything else, then YES the Meeting would be invalid.
Make sure that the Agenda and Minutes weren’t posted on the Owners Corporation’s Notice Board instead of being provided to all Owners, but in any case it’s up to the E/C to prove it did produce those documents.
Regarding that change to your balcony, I recall your original post about a neighbour’s airconditioner being installed there and the sound advice that Flatchatters then provided; so at the risk of opening a can-of-worms what was the outcome of that?
It’s unusual for gas usage within Lots to be paid for by the Owners Corporation (O/C) but notwithstanding that, as the bayonet fitting was installed by previous owners and the O/C did nothing to correct that situation then or since then you, as a subsequent owner cannot be forced to remove it, although the O/C may itself do so at its expense (i.e. using the funds contributed by all owners, incl. you).
Millie – if your proposed renovations really don’t involve any areas of common property such as the floor or perimeter walls adjoining other lots, then all you need do is to formally advise your Owners Corporation of that, of the date when works will commence, of the proposed hours of work, of when you expect completion, and to seek advice on any requirements it may wish to provide to you (within a timeframe) regarding contractors’ access to / across the common property.
If however as your post mentions “retiling of walls, floor and shower tray” is proposed as part of your works, and as that does involve the common property, then perhaps additionally ask your Owners Corporation if the same consent as was granted to the Chairman can apply to you?