As I will be initiating this action, am I responsible and obliged to pay for the OC’s costs for lawyers and or strata representation ?
For a start, if you want to challenge this you can and, in fact, must seek mediation at Fair Trading, which is free. If the OC decides to hire lawyers for that stage, they have to justify that to other owners and if they lose at a later stage you don’t have to pay any share of the costs, even those that would flow through levies.
Simply present any references you can find in OC records to the other units having applied (or not) for permission to install air-con and how that was handled. I’d also search for any evidence that the OC had asked the other owners to remove the air-con.
In the absence of any evidence that other owners have been through this process, you could proceed on the basis that you may have a reasonable case. If you then don’t get a result at Fair Trading (e.g. the OC backs down) and take it to NCAT, the question then arises on whether or not you need legal representation. On balance, I would say you should brief an experienced strata lawyer to handle the case.
Even then, each side generally pays its own costs unless there are specific extraordinary circumstances (download this fact sheet). These include:
a) A party has conducted their case in a way that unnecessarily disadvantages another party
b) A party has been responsible for unreasonably making the case take longer
c) The relative strength of a party’s case or whether the case was hopeless
d) The nature and complexity of the case
e) A party’s case was frivolous, vexatious or misconceived
f) A party has not cooperated with the Tribunal in providing a just, quick and cheap resolution of the real issues in dispute
g) A party has not followed Tribunal orders or directions
h) Any other matter the Tribunal thinks is relevant.
Since you would not be seeking financial compensation, other issues relating to the size of claims would not apply.
In short, provided you play by the rules you shouldn’t have to pay the OC’s legal costs. Also, if you win, they have to cover their costs with a special levy on other owners to which you are excluded from contributing.
So that should be your only concern. If you (and your lawyer) firmly believe you are in the right, and have a high probability of winning, go for it.
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.
- This reply was modified 2 years, 2 months ago by .