#13682
Ray2U
Flatchatter

    Hi Jimmy

    As I read Section 138(1)(a), it's about the OC failing to do a function, so I think it's separate from the issue of the breach of the by-law. Section 138(1)(a) mentions by-law but (again as I read it) it would be if the by-law conferred a function. For example; a by-law to issue security keys and to collect the deposit and you would be taking the OC to task for not having done that. For by-law cases the order sort from the CTTT would be for the OC to respond to the applicant or for the OC to issue a s45 notice.

     

    For an owner to take another owner to the CTTT for the issue of not obeying a by-law, the owner generally has to apply under section 117 – Owners, occupiers and other persons not to create a nuisance.  Note that an individual has no grounds to use s45 in applying to the CTTT again supporting the notion that s45 is an exclusive OC function.

    If I were going to the CTTT for the OC failing to do a function [s138(1)], I'd probably include an application for an order against the person breaking the by-law under this section 117. You're not going to be popular with anyone and you may as well 'go for broke'.

     

    For others reading this blog, I would suggest you try this as a proforma letter to the OC;

    Pursuant to s138(2) I apply to the Owners Corporation to exercise its function [s45] to enforce the parking/noise/washing/?? by-law. See the attached for supporting evidence which details the dates, times and identifies the responsible person. Should the infringement continue after a section 45 notice has been issued, I am prepared to document further evidence and provide sworn statement to the CTTT at a hearing.

     

    Now if the OC fails to respond, you have solid grounds to go to the CTTT under s138 for the OC failing to respond. But if the OC informs you that, in their opinion there are not sufficient grounds to proceed with a s45 notice then it's a matter of opinion. This would make it (in effect) very similar to the Queensland situation where they can do the same thing (though QLD have a nice explicit piece of instruction for the EC).

    In the case of the OC deciding not to proceed with a s45 notice, you could go to the CTTT to argue the OC failed to issue a s45 notice without proper reason but the decision would be based on if the OC were justified in rejecting your application.  Mostly I would expect the application to fail under these circumstances for the OC would have demonstrated due process in its administration of its by-laws.

     

    I should put a disclaimer on all this for I have no legal qualifications.  I'm just well read in the Act.