@Stradey said:
We are not privy to the committee consultations and are waiting to see if they will take further action.We are hoping that the committee will continue their efforts but the matter has been going on for four months. We are not sure if we should take it up ourselves through mediation/adjudication and what chance of success we have.
Firstly, you are entitled to see any communication between the committee and the owners, and the minutes of any meetings related to this issue.
Secondly, four months is way too long to wait for a result. In your shoes I would commence action against the committee AND the upstairs owner at Fair Trading, with a view to seeking mediation with the intention of seeking orders at NCAT.
In the case of the committee, the mediation would be to require them to fulfil their duties under section 232 (1)(e) (below).
Or you could simply seek a direct ruling from NCAT under section 232 (1)(a) to resolve the dispute.
once you’ve had your mediation, you would have to choose who you were going to take to the Tribunal – you can’t do both at the same time – but I would hope that the strata committee would get moving on this once they saw you were going to take them to Fair Trading and they might end up having to issue Notices to Comply and breaches anyway.
As far as your chances of success go, the vehemence of lot owners’ responses tends to be an indication that they are on shaky ground. If they have ignored clearly stated by-laws means you a have a very good chance of success – but there are no guarantees.
Even without by-laws, you are entitled to the peaceful enjoyment of your lot so start taking a noise diary and get sworn statements from friends and neighbours that the noise is disruptive and intrusive.
(1) Orders relating to complaints and disputes
The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following:
(a) the operation, administration or management of a strata scheme under this Act,
(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,
(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.