Hey TimSP,
Re: Post 1 of 2
Let me reiterate, by expanding on a few points made earlier. Sorry if it sounds repetitive, but I feel they are worth stressing:
1. NCAT regards the strata manager as merely the agent of the OC and hence while doing the bidding of the OC, the strata manager is not liable (for any unfortunate consequences). The OC is usually held liable;
2. Most management agreements b/w OC and strata manager emphasise this position. Especially, at least from what I’ve seen, in management agreements prepared by the Strata Community Association and offered to an OC by the strata management company;
3. As an owner under the Strata Schemes Management Act (“SSM Act”) you alone can take action against the OC for its failings. If you’re unhappy with the conduct of the Strata Committee (“SC”), in carrying out tasks dlegated to it by the OC, again that would be action against the OC. As stated earlier, if you really want to hammer home the point that the SC members have been derelict in their duties, by all means file a complaint against the OC and name the relevant person(s) on the SC as joint respondents in your application;
4. I agree with the NCAT statement about disallowing your order against the strata manager. As I understand it – and I am not a lawyer, just an owner who has suffered interactions with some committee members who are unfit to to sit on an SC – the OC is the entity that hired the strata manager and so only the OC can take action against him. You personally did not hire the strata manager. You may ask the OC to act against the strata manager for failing in his job, but if the OC declines to act, you cannot do so as an owner.
If you claim there is a conflict of interest, then that’s a feather in your cap against the sleepy SC. Can you show they did not act in good faith. In this regards, see the SSM Act, s. 260
260 Personal liability of officers of owners corporations and others
(1) A matter or thing done or omitted to be done by any of the following persons, or a person acting under the direction of any of those persons, does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing functions as such a person under this or any other Act, subject any of the following persons or person so acting personally to any action, liability, claim or demand–
(a) an officer of an owners corporation,
(b) a member of a strata committee.
(2) Any such liability of an officer of an owners corporation or a member of a strata committee attaches instead to the owners corporation.
If you can prove a lack of good faith by the SC, then that’s a strong point.