#58468
Jimmy-T
Keymaster

    For the uninitiated, Section 238 is a provision under the Act by which owners can ask NCAT to remove committee members, office-bearers or the whole committee.

    It also says in 238(2) that

    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.

    And although 238 (2)  might well apply, my feeling is that the bar for such draconian measures is a bit higher than misleading owners, even if done deliberately.

    All it takes is one brave soul to challenge the by-law via Section 157:

    157   Order permitting keeping of animal

    (1)  The Tribunal may, on application by the owner or occupier (with the consent of the owner) of a lot in a strata scheme, make an order declaring that the applicant may keep an animal on the lot or common property.

    (2)  The Tribunal must not make the order unless it is satisfied that—

    (a)  the by-laws permit the keeping of an animal with the approval of the owners corporation and provide that the owners corporation cannot unreasonably withhold consent to the keeping of an animal, and

    (b)  the owners corporation has unreasonably withheld its approval to the keeping of the animal on the lot or common property.

    Or they could seek to have the by-law rescinded under Section 150:
    150   Order invalidating by-law

    (1)  The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.

    (2)  The order, when recorded under section 246, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order made by a superior court).

    (3)  An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.

    In reality, the objecting owner would probably only need to request mediation at Fair Trading for the SC to realise the by-law was invalid.
    The fact that there are at least two other legal avenues for overturning the by-law would suggest to me that the Tribunal is unlikely to go for 238 – unless the SC has wilfully ignored Tribunal rulings.
    And then there is good old-fashioned democracy.  If the SC has run up large legal bills in trying to defend the indefensible, they can and should be voted out at the next AGM.
    It’s worth noting that in one of the blocks that was prominent in the “no pets” legal battle of the past couple of years, the owners, a majority of whom had supported legal action, then turned round and voted the strata committee’s key players out after they lost.
    The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.