Some cases that make the chocolate wheel of representation even more chocolaty
24. As noted, the Appeal Panel refused the appellant’s application that it be legally represented. In our opinion there was no reason why leave ought to have been granted. Section 45 of the Act, set out above, starts from the position that a party is not entitled to be represented at a Tribunal hearing. In order for leave to be granted, there needs to be a proper reason for that prima facie position to be departed from.
Gearbox Solutions Pty Ltd v Bougoukas [2014] NSWCATAP 105
And then we see stuff like this where Member Rosser says you get no costs because you could have self represented and opted not to.
“… the operator opted to be represented by a lawyer. It had no obligation to do so. The tasks involved in providing evidence, and making submissions at the hearing could have been undertaken by an employee or officer of the operator. The residents should not be obliged to pay an expense the operator had no obligation to incur.”
Member Rosser in Sadlo v Viceroy Gilead Pty Ltd [2013] NSWCTTT 559 at 10
If we read the NCAT ‘flyer” on representation then we see that because an OC is an artificial entity it only really needs to ask and it gets to be represented even though the guide hints at an SC member or the agent representing. Agents as representatives is a bit of a joke because most agents do not know strata law very well at all and to pay someone with no real clue $200-300 per hour to be clueless isn’t sane.
“NCAT members were growing so tired of having to explain the law ….”
I like that because there are a lot of cases where it is very clear the Member does not know the strata law; perhaps they too need representation, LOL.
At a recent NCAT matter I was involved with the Member at the conciliation hearing want to make an order that was contrary to a section of the Act. The Member had no idea what he was doing but it was his idea, it sounded equitable to him, so he wanted to run with it. Fortunately events had overtaken his poor idea and when I subsequently questioned if he was fit for purpose with his overlords they did not want to know about it. NCAT had the tape of the hearing, they could play it back and hear that my assertions were correct, they wouldn’t touch it.
And let’s not forget the object of the “NCAT” Act
3 (d) to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible
If representation is the default position then cheaply must have taken on a new meaning in or around the $500-700 per hour mark.
Also ‘as little formality as possible” means what; seems it means get a lawyer.
It seems the cheap and informal dispute resolution mechanism is “quickly” becoming only for people with money.
Anyway; the question is more about should the SC members get the protection of the OCs legal umbrella in a s 238 matter.
What I wanted the poster to understand was no one has brought a s 238 application and got favourable orders. So if anyone should be worried about costs it should be the applicant seeking such an order.