air conditioning proposal rejected

Take this to NCAT.

The principle you take them on is that they did not apply the by laws equally.

There was a case settled late last year ( and I can’t recall the particulars) but an elderly couple won their case because the owners corporation was applying a bylaw to them but not to other owners.

Generally courts apply the principle that if you turn up, you have to have “clean hands”

The OC will be forced either to make the other owners remove their condensers from in front, or approve your installation.

I’d suggest using a strata lawyer in this case as it’s a sort of roundabout argument and you need to get your complaint worded correctly so that the correct orders can be made.

NothingSpecial wrote:

As I will be initiating this action, am I responsible and obliged to pay for the OC’s costs for lawyers and or strata representation ?

For a start, if you want to challenge this you can and, in fact, must seek mediation at Fair Trading, which is free.  If the OC decides to hire lawyers for that stage, they have to justify that to other owners and if they lose at a later stage you don’t have to pay any share of the costs, even those that would flow through levies.

Simply present any references you can find in OC records to the other units having applied (or not) for permission to install air-con and how that was handled.  I’d also search for any evidence that the OC had asked the other owners to remove the air-con.

In the absence of any evidence that other owners have been through this process, you could proceed on the basis that you may have a reasonable case. If you then don’t get a result at Fair Trading (e.g. the OC backs down) and take it to NCAT, the question then arises on whether or not you need legal representation.  On balance, I would say you should brief an experienced strata lawyer to handle the case.

Even then, each side generally pays its own costs unless there are specific extraordinary circumstances (download this fact sheet).  These include:

a) A party has conducted their case in a way that unnecessarily disadvantages another party
b) A party has been responsible for unreasonably making the case take longer
c) The relative strength of a party’s case or whether the case was hopeless
d) The nature and complexity of the case
e) A party’s case was frivolous, vexatious or misconceived
f) A party has not cooperated with the Tribunal in providing a just, quick and cheap resolution of the real issues in dispute
g) A party has not followed Tribunal orders or directions
h) Any other matter the Tribunal thinks is relevant.

Since you would not be seeking financial compensation, other issues relating to the size of claims would not apply.

In short, provided you play by the rules you shouldn’t have to pay the OC’s legal costs.  Also, if you win, they have to cover their costs with a special levy on other owners to which you are excluded from contributing.

So that should be your only concern.  If you (and your lawyer) firmly believe you are in the right, and have a high probability of winning, go for it.

• This reply was modified 2 years, 1 month ago by .

I have experience of installers’ advice about what is feasible and have learned to be sceptical. Their advice is frequently just what is quickest and easiest for them or even just what they usually do. Some have very little imagination for creative solutions. With a little push, it often turns out that what is wanted can be done. Have other units managed to install RCAC with the compressor in the rear of the units and not at the front? If so, it can be done. Perhaps the two units with compressors at the front were unilateral action by the two owners and not approved?

Where I am, people often want to put the compressors in a location on common property that detracts from the appearance of the site but puts the compressor out of the unit courtyards where the owner would see it and where its effect on appearance would be much lessened. The common property location would be consistent with the usual style of installation that installers are accustomed to so that is what installers recommend. As a committee, we are forever telling people to go back to the installer and tell them that they can do it differently as proven by various approved installations that are kept within the unit areas.

In my particular unit, it would not have been possible to put the compressor outside the unit area unlike most of our other units. Regardless of approvals, we had no choice but to do it within the unit area. It was also not possible to put the plumbing over the ceiling for the usual high wall units due to a second floor. Instead we have one larger compressor in our courtyard for a multi-split system that can run any combination of our multiple internal units mounted low on the walls of rooms. The plumbing for the refrigerant fluid and drain lines go under our suspended timber floor. The low wall location is better in any case since we use the system primarily for heating.

You were lucky at mediation.

Speaking as someone who took an OC  to mediation (where agreements are not binding) and the NCAT (where in theory judgements are binding), I was let down in both cases.

At mediation the OC agreed to something and soon after ignored it.

I then went to NCAT where they were ordered to do the same thing, and do it within 2 months, but they ignored that order. Many months after the deadline set by NCAT, they finally did a ham-fisted attempt which had to be redone thereafter.