Alternative dispute resolution by Secretary

Just to clarify, there is a difference between a “Notice To Comply” and NCAT Orders.  The process for issuing a Notice To Comply is described in the first extract from the Fair Trading manual Strata Living (below)

A Notice To Comply must be issued on the prescribed form and has to be issued by the strata manager or by the committee via a strata committee meeting (with agenda and minutes) as per the instruction on the form.

If the NTC is ignored, you can then apply for a penalty (fine) for the breach of a by-law. This step does not require mediation (see extract 2 from Fair Trading’s Strata Living below)

If you go for Orders, you are asking NCAT to order the owner to abide by the by-law.  This does require mediation first but the fines for disobeying the order are potentially much higher.

The “quick and dirty” solution is a Notice to Comply – the threat of a fine may be enough to focus the resident’s mind.  

The longer but more serious process is Orders (something you might consider later if a fine doesn’t work) and that requires Mediation at Fair Trading.

However, you can organise your own internal mediation to try to preempt going down the official channels.  It all depends of the seriousness of the issue and the disposition of the parties involved.

From Fair Trading’s booklet Strata Living

Breaching the by-laws
If a resident breaches a by-law, the strata committee can first contact the resident to advise of the breach, and ask that they stop the conduct that is causing the breach.
If this is unsuccessful, the owners corporation may issue the person responsible for the breach with a Notice to comply with a by-law. If they have the delegated authority, a strata managing agent may also issue a notice to comply.
If there is a breach after the notice has been issued, the owners corporation may apply to the Tribunal to impose a penalty, after resolving to do so at a general or strata committee meeting.
If the Tribunal has already fined the owner or occupier within the last 12 months for a breach of the same by-law, the penalty imposed by the
Tribunal can double to a maximum of $2,200. In this case, the owners corporation does not have to issue another notice to comply before applying to the Tribunal to impose the fine 

Lot owners or the owners corporation can lodge certain disputes directly with the Tribunal without needing mediation first. These include matters seeking an order:
• to appoint or require the appointment of a strata managing agent
• allocating unit entitlements
• for access to a lot by the owners corporation to inspect or repair common property
• seeking records from a former strata managing agent to be provided to an owners corporation
• for inspection of records
• imposing fines, such as for a by-law breach.

There is a bit of confusion here becasue the Secretary in the Act sometimes refers to the secretary of Fair Trading.

Anyway, this is what my person from the Ministry told me:

They would prefer owners to sort these things out amicably and internally.  If you want to use a mediator (maybe the chair of another building) that’s fine, as long as everyone agrees on the outcome.

However, if there is a serious prospect of this requiring adjudication at NCAT you should contact Fair Trading about getting approval for mediation which could be through them, the Community Justice Centre or a professional service.

Once you have approval, you can proceed in the knowledge that the mediation or attempted mediation will be accepted as the mandatory precursor of  an application to NCAT.

Don’t forget that mediation only has to be attempted – if the respondent to a complaint refuses to participate an approved effort to mediate still counts.

And there are some issues that don’t require mediation.  Also, the mediation form says that if you want to have a pet in a building whose by-laws clearly say “no pets” they will not accept an application for mediation.