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Hi. Thanks to all for their comments. First:
The relevant by-law is similar to the standard and says merely: “An owner and occupier must not use language or behave in a way that might reasonably offend or embarrass another owner occupier or their invitees.”
As explained, this was seized upon (under legal advice) as the only way of silencing a critic. The problem was that it was stretching a long bow. It’s reasonable to hypothesise that the by-law was meant to curb obscene, fillthy and grossly insulting language, which might be offensive to the target and embarrassing to people who overhead such remarks. Merely to allege in an email that an executive committee falsely claimed a democratic justification for its actions by producing proxies obtained from “indifferent, unsuspecting or misinformed” owners does not meet the test implied in the bylaw.
54% of the owners in that strata are of immigrant ethnic background. The vast bulk of them take no interest in strata affairs. Many have limited English and culturally, shrink from robust disagreement and debate. In the event, it was established that some had been given false information about the subject under discussion, and various devices (including pressure) were used to obtain their proxies.
It’s all very well to say a Notice to Comply has no force until activated by further action. The problem for the individual is that the s.45 notice stands on the strata record as a judgement, without right of reply or challenge. The action in adjudication was an attempt to clear his name, seeking a finding that the words used did not come within the meaning of the bylaw. It was a scurrilous use of a legalism to pull the stunt of “declaratory power” as an excuse for not digging down to solve the dispute.
Now compare that with the situation in NSWSC 341: Franks v Consumer, Trader & Tenancy Tribunal (2013);
The Owners Corporation of SP70672 took action in the CTTT under s.138 against the owner Phillip Franks for breaching exactly the same by-law: “Using language or behave in a way that is reasonably likely to offend or embarrass another owner or occupier or their visitors.”
It is not necessary to go into the reasons why it ended in the Supreme Court, but the offences alleged included a long string of complaints by various owners over time, including physical threats and bullying. The owner repeated the action after being served with a notice to comply with the bylaw.
The difference was that the adjudicator had before him a complaint from the OC to act against an owner, and therefore he had no difficulty at all in investigating in detail the complaint and making findings and orders.
My point is simply, that claiming not to be able to give “declaratory relief” is a cop-out, a side-step to avoid having to get down into the details of the complaint, with the result that the dispute remains unresolved, and justice becomes a joke. While the CTTT Act and the SSMA pretend to operate at a layman level, with the right of personal approach to the Tribunal, the reality is that these vehicles operate on an essentially legalistic basis; an unrepresented individual is highly vulnerable and will be cut down smartly by an adjudicator or tribunal member.
FWIW the owner has written to the OC as suggested, ignoring the notice. It’s even probably the issue will not re-appear, but it is completely cynical that the adjudicator would write that the evidence put forward in great detail in support of the complaint could well be used in defence should the OC take action to enforce the order to comply. Since the issue is really one of trying to suppress criticism and dissent – but not in language that is either offensive or embarrassing – who knows where it will end?