› Flat Chat Strata Forum › NCAT – the NSW Tribunal › Is mediation really necessary? › Current Page
@SMO said:
How is your reply relevant to my post? I’m just saying what scotlandx wrote and how OFT operate, according to Mr. Courtney, are divergent.
No, you weren’t “just saying” that. You also said:
I would encourage everyone to throw the comment of Supreme Court Justice Pembroke at CTTT when dealing with some dispute over a section of the Act that has the word must in it, until CTTT understand that must means must.
You have decided that the Act is being operated wrongly and I was pointing out that there is no penalty attached to this compulsion to attend mediation (apart from failure to take part doing serious harm to your case when you take it to the CTTT) so the word “must” carries little weight. There are issues under the Strata Act that do carry penalties for failure to comply, but not this.
Why?
You can’t compel people to give evidence in court so how can you compel them to negotiate at a much lower legal level. There is no clause that says failure to attend mediation means, for instance, you automatically lose or you will be fined. There is no clause that says even if you do attend that you must engage in a negotiation. There is basically an understanding that if you refuse to attend or engage properly in mediation, it will not be looked upon kindly when is goes to adjudication.
But there are plenty of Owners Corps and strata managers who keep their powder dry until adjudication (which is done on paper, not by personal representation) where they can, for instance, explain that they declined mediation because it was a vexatious complaint with little chance of success so the cost of representation at a mediation was a de facto financial penalty against them for not agreeing to whatever the plaintiff was demanding.
All this nitpicking and hair splitting over the meaning of “must” gets us nowhere. Let’s stick to practicalities. One way CCBaxter can discover if his ancient by-law stands up is to challenge it at the CTTT by seeking an order under sections 158 or 159 (see below).
Or he can persuade the beneficiaries of this by-law that their free ride is over and invite them to formulate a new by-law that is mutually acceptable and doesn’t bear the additional and unnecessary cost of litigation.
(1) An Adjudicator may make an order prescribing the making, amendment or repeal, in terms of the order, of a by-law if the Adjudicator finds:
(a) on application made by an owner, that the owners corporation has unreasonably refused to make a by-law of the kind referred to in section 51, or
(b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed by-law of that kind, or to the proposed amendment or repeal of such a by-law, or
(c) on application made by any interested person, that the conditions of such a by-law relating to the maintenance or upkeep of any common property are unjust.
(2) In considering whether to make an order under this section, an Adjudicator must have regard to:
(a) the interests of all owners in the use and enjoyment of their lots and common property, and
(b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a by-law of the kind referred to in section 51.
(3) An Adjudicator must not determine an application referred to in subsection (1)
(a) by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.
(4) For the purposes of subsection (1), an Adjudicator may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.
(5) An order under this section, when recorded under section 209, has effect as if its terms were a by-law (but subject to any relevant order of a superior court).
159Order invalidating by-law
(1) An Adjudicator may make an order declaring a by-law to be invalid if the Adjudicator considers that an owners corporation did not have the power to make the by-law.
(2) An order under this section, when recorded under section 209, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order of a superior court).
(3) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order
(4) An application for an order under this section may be made only by a person entitled to vote on the motion to make the by-law or the lessor of a leasehold strata scheme.