Adjudicator order – now SM is changing By Laws – where do I stand?

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  • 17/03/2015 at 9:33 am #9946
    bcr83
    Flatchatter

      Hi all,

      Have posted nearly 6 months back on air conditioing installation dispute between myself and the OC.

      Long story short – The adjudicator has ordered the installation in the location that I have requested and found the SM unreasonable in their refusal of my request.

      The current situation is that there is talk about changing SBL 3a in the AGM in two weeks – to only have AC installed on balconies and not any other common property.

      If I install the air con in line with adjudicators orders prior to the SBL being reviewed and updated am I exempt from any future SBL changes regarding my installation? I am in the thought that a By Law cannot be applied retrospectively and as such I should be okay..?

      Would be great if someone could confirm that this is the case

      Thanks in advance

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    • 18/03/2015 at 10:19 am #23244
      Whale
      Flatchatter

        Special By-Laws can be retrospectively applied to the extent that they apply equally to all then existing and future residents of a Strata Plan, but not to the extent that they deleteriously affect any prior decision of an Owners Corporation or of an Adjudicator with regard to individuals.

        It seems that your Owners Corporation wants to rule a line under your installation in order to prevent anything similar in future, and whilst that’s its prerogative, if it suits you to get moving with your aircon. installation sooner rather than later, that may avoid further discussions / delays.

        18/03/2015 at 12:13 pm #23247
        bcr83
        Flatchatter
        Chat-starter

          Thanks Whale, I thought this may be the case. Aiming to complete the install a few days prior to the AGM!

          31/03/2015 at 7:59 pm #23324
          bcr83
          Flatchatter
          Chat-starter

            Update:

             

            I have received the proposed SBL ammendment with one of the parts stating the below:

            “For the avoidance of doubt, this part 3 applies to the installation, repair or replacement of an AC unit whether installed prior to or after this by law made”

            My interpretation of this is that they are trying to retrospectively apply this by law to existing installs.

            Could someone in the know please advise of what they can/cannot do? Surely if I have an adjudicators order for which I installed a unit they cannot make me move it?

            Thanks in advance

            01/04/2015 at 9:57 am #23328
            kiwipaul
            Flatchatter

              I believe you will be ok.

              The adjudicator says

              Long story short – The adjudicator has ordered the installation in the location that I have requested and found the SM unreasonable in their refusal of my request.

              So a bylaw that conflicts with a ruling would be very unlikely to be enforceable and that is the crux of it. They can pass any number of bylaws if they have the numbers but their (of the bylaw) validity is not checked on registration it is only tested when they go to adjudication.

              When you won at adjudication you must have had a valid case and that case hasn’t changed just because the Strata have moved the goal posts. But as Whales says get it installed before the new bylaw and then they would have an even harder battle.

              01/04/2015 at 1:28 pm #23330
              bcr83
              Flatchatter
              Chat-starter

                @kiwipaul said:
                I believe you will be ok.

                The adjudicator says

                Long story short – The adjudicator has ordered the installation in the location that I have requested and found the SM unreasonable in their refusal of my request.

                So a bylaw that conflicts with a ruling would be very unlikely to be enforceable and that is the crux of it. They can pass any number of bylaws if they have the numbers but their (of the bylaw) validity is not checked on registration it is only tested when they go to adjudication.

                When you won at adjudication you must have had a valid case and that case hasn’t changed just because the Strata have moved the goal posts. But as Whales says get it installed before the new bylaw and then they would have an even harder battle.

                　

                Thanks KiwiPaul,

                I am not clear on the power of the Adjudicators order, realistically if an SBL could override an Adjudicators order then what is the point of having an order sought??

                My gut feeling is they will issue a notice to comply post the AGM under the new Bylaw with a whole new process for me to go down (this has already been 6 months)

                I am considering getting legal advice and would like to know where I stand before I go down that expensive road…

                 

                01/04/2015 at 4:05 pm #23332
                Whale
                Flatchatter

                  KP’s right.

                  With reference to the NSW Strata Schemes Management Act, have a look at Sect. 43(4) and more particularly Sect. 49(2).

                  In the first case, you have a ruling under Chapter 5 of the Act, and as the proposed amendment to your Plan’s existing Special By-Law would render it inconsistent with that ruling, the amendment would have no effect; so it’s dead!

                  In the second case, the Adjudicator’s ruling is effectively a By-Law, and so that cannot be amended except by a unanimous resolution of those present at a General Meeting; so it’s buried!

                  So let the vindictive buggers put their half-smart Lawyer’s amendment to the vote at the General Meeting, and when you vote NO it is, with apologies to the Prime Minister, cremated!

                  01/04/2015 at 4:43 pm #23333
                  bcr83
                  Flatchatter
                  Chat-starter

                    Thanks for the reply Whale, I think I’ve lost half my head of hair over this whole process so I’m keen to put it to bed!

                    I did read that existing By-Laws can be changed or created by special resolution (this is happening for the existing SBL) with 75% majority vote which I imagine will get passed though.. If however the By-Law is an SBL then it requires a unanimous resolution? So am I correct in that the Adjudicatoris order is treated as an SBL?

                    Apologies if I’ve gone round in a circle! Just trying to be crystal clear on this before any communications take place.

                    I’ll do a bit of reading tonight on the NSW SSMA to see how it all fits in.

                    Thanks again

                    01/04/2015 at 4:54 pm #23336
                    bcr83
                    Flatchatter
                    Chat-starter

                      I had a quick look at the NSW SSMA – Sect 49 (2)

                      (2) By-law resulting from order cannot be changed If an order made under Chapter 5 has effect as if its terms were a by-law, that by-law is not capable of being amended or repealed except by a by-law made in accordance with a unanimous resolution and, in the case of a strata leasehold scheme, with the consent of the lessor of the scheme.

                      I think this provides some clarity, basically a unanimous reslution is required to change an order, so if they disagree with the order itself they have a right to table it at an AGM however my against vote cancels it out..

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