We want to clarify why we said:
4. Based on our extensive knowledge of NSW strata laws, it is difficult to rely on NSW Fair Trading and NCAT. Formal processes to go through mediation at NSW Fair Trading and then NCAT if mediation is unsuccessful is: costly, especially if legal services are used, time-consuming, and risky, as public officials can ignore the evidence, or even not look at it if they see fit.
.. and why it is best to avoid courts, even when you are completely right.
NCAT exercised its power to terminate a building management agreement for the first time, in case of The Owners- Strata Plan No. 64807 v Sunaust Properties Pty Ltd [2022] NSWCATD 20. After concluding that section 72 of the SSMA applied to the Agreement, the Tribunal determined that the Agreement should be terminated.
However, Sunaust Properties Pty Ltd found the loophole and then created three more legal events:
The Owners — Strata Plan No 64807 v Sunaust Properties Pty Ltd (2022) APLC 22-002, New South Wales Civil and Administrative Tribunal – Consumer and Commercial Division, 17 January 2022
Sunaust Properties Pty Ltd v The Owners — Strata Plan No 64807 (2022) APLC 22-075, Supreme Court of New South Wales, Court of Appeal, 27 July 2022
Sunaust Properties Pty Ltd v The Owners SP no 64807 (no 2) (2022) APLC 22-051, New South Wales Civil and Administrative Tribunal – Appeal Panel, 27 October 2022
Sunaust Properties Pty Ltd t/as Central Sydney Realty v The Owners-Strata Plan No 64807 (2023) APLC 23-025, Supreme Court of New South Wales, Court of Appeal, 14 August 2023
NCAT Appeal Panel (Sunaust Properties Pty Ltd v The Owners Strata Plan No 64807 [2022] NSWCATAP 246 (27 July 2022) and Sunaust Properties Pty Ltd v The Owners Strata Plan No 64807 (No 2) [2022] NSWCATAP 335 (27 October 2022) overturned the original decision on jurisdictional grounds (Supreme Court proceedings were already in progress and Clause 5(7) of Schedule 4 of the Civil and Administrative Tribunal Act 2013 effectively negated NCAT jurisdiction in these circumstances). Basically, owners corporation made a mistake to have cases at NCAT and the Supreme Court (albeit on different issues against Sunaust Properties Pty Ltd) at the same time.
NCAT Appeal Panel has, however, concluded that SSMA 2015 Section 72 could apply under valid legal circumstances.
We would not be surprised if this case drags even longer.