I’ve seen quite a bit of legal advice and NCAT judgments that argue the by-laws are a contract between each owner and not between the owner and the OC. Therefore, while the OC can enforce by-laws they are actually under no legal requirement to do so. Interested in anyones thoughts.
The owners corporation has a duty to enforce its by-laws – although it may be only when asked to do so (i.e. there is no duty to do so pre-emptively). I have never read anywhere that by-laws are merely a contract between individual owners.
The contrary was confirmed to me by the Fair Trading (now Services) Minister Victor Dominello who quoted his Second Reading of the current Act, in which he said “Members of the strata committee will now have a statutory duty to act for the benefit of all owners and to exercise due care and diligence in their role.”
He said that implied a duty of care to enforce their by-laws. If the owners corp doesn’t have a duty of care, why does section 232(2) (below) even exist?
Good luck with the acoustic tests.
Section 232 (2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.