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  • #63761
    Investor13
    Flatchatter

    OC does not comply with the Act. Majority of owners support the SC. Multiple issues of non-compliance including no SC Meetings (limited communication to owners and no Minutes), no Breach of By-Law Notices issued, major repairs not actioned, etc

    All issues extensively documented for NCAT Hearing plus request and details for a Compulsory Strata Manager.

    NCAT decision supported OC which potentially sets a precedent for all Strata Schemes in NSW.

    Notice of Appeal lodged. Callover held. OC has engaged lawyers.

    1.How do I prove “not fair and equitable”, “against the weight of evidence”, ” a miscarriage of justice” without “rehashing” (wording of Member)?

    2.How do I avoid Costs being claimed against me by OC?

    3. What points of Law should I be aware of. I’m just using the Act.

    Can anyone help.

     

Viewing 12 replies - 1 through 12 (of 12 total)
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  • #63763
    Jimmy-T
    Keymaster

    1.How do I prove “not fair and equitable”, “against the weight of evidence”, ” a miscarriage of justice” without “rehashing” (wording of Member)?

    You almost certainly need a lawyer.  If you genuinely can’t afford one, then contact MLC.org.au/strata

    2.How do I avoid Costs being claimed against me by OC?

    Costs are supposed to be awarded in NCAT cases only in exceptional circumstances (read this guideline). These special conditions are:

    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.

    Apart from (h) which is pretty much imponderable, just make sure you don’t fall into any of the above categories. Also, if you win, the OC has to raise a special levy, that excludes you, to pay their costs. But first you have to win.

    3. What points of Law should I be aware of. I’m just using the Act.

    There’s the Act – actually three Acts: Strata Management, Regulations and Development – and then there are legal interpretations and precedents. And then there’s the fact that Tribunal members just don’t like overturning previous verdicts if they don’t have to.

    I would not advise anyone to try to run their own case on appeal without specialised legal advice.  You’d be taking a butter knife to a gunfight. Unless you can get a strata lawyer to take the case on a contingency basis (unlikely), you’d be taking quite a gamble.

    Can anyone help?

    My advice would be to maybe let this one go through to the keeper then go for the low-hanging fruit among your (presumably) many complaints.  Pick them off one by one and that way you can build a case that the scheme is dysfunctional.  But that’s just my opinion and I am not a lawyer.

     

     

    • This reply was modified 1 week ago by .
    #63770
    Investor13
    Flatchatter
    Chat-starter

    Thanks Jimmy

    Your response was helpful.

    I’ve already gone to MLC but they have yet to respond.

    I’ve also gone to my local State Member – James Griffin

    Any ideas on lawyers who would like to take on NCAT on a contingency basis?

    All owners in Strata Schemes in NSW should be concerned as the NCAT Decision of 10 May 2022 is a matter of public record and sets a precedent.

    I provided 150+ pages of evidence – emails and photos. The list of non-compliance issues is extensive. (For the moment, let’s add a few more – changes to common property without approval; use of OC funds for remotes (for some but not all owners); and tree removal within certain Lots. All obviously without any SC/OC approval. Plus no Fire Safety Inspection since 2020, confirmed by the local council.)

    Q4 Does my win in obtaining 2 Orders (minor common property repair matters) exclude me from any costs up to date.

     

    #63772
    kaindub
    Flatchatter

    I have to agree with JT final paragraph.

    The quickest way to lose your money, and mind, is to fight a legal battle because you think you are right, on the principle.

    It usually does not turn out like The Castle.

    An appeal cannot introduce new evidence. Your grounds have to be thst the law was not applied correctly.

    You say that the majority of owners are on the side of the SC. As a strata is a democracy and you seem to be in the minority, you’re going to be unsuccessful until you convince more owners to side with you.

     

    #63778
    Investor13
    Flatchatter
    Chat-starter

    Thanks kaindub but it was my understanding that Strata Schemes in NSW had to comply with the SSMA 2015, not the majority. The SC has to act in the best interests of all owners and thus the OC must comply with the Act.

    At least NSW Fair Trading issued a STRIKE against one owner in relation to Short Term Rental when the SC would not act. I just need NCAT to fully support the Act.

     

    #63780
    Jimmy-T
    Keymaster

    I just need NCAT to fully support the Act.

    Can you tell us roughly what part of the Act that NCAT isn’t enforcing?

    #63786
    kaindub
    Flatchatter

    I think you are a bit confused. As JT has said many times, there is no such thing as a strata cop. It’s usually left up to owners to challenge their strata managers and committees.
    NCAT is a court that hears the arguments of both sides and decides who is more right.

    You will find that laws and regulations are not black and white. If they were we would not need courts. Every dispute that ends in a court has unique circumstances. The court decides on the evidence presented how to apply a law or not.

    Even if a party has a good case, if the case is argued poorly in a court, the chances of a positive decision are diminished.

    #63794
    Jimmy-T
    Keymaster

    Does my win in obtaining 2 Orders (minor common property repair matters) exclude me from any costs up to date.

    Let’s look at what section 104 of the Act says:

    An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.

    An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose. In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.

    So there you have it.  The owners corp must raise a special levy to pay its legal expenses and you must be excluded from that levy.

    The OC will doubtless argue that it substantially or partially won the case, and only needs to exclude you from a proportion of the costs covering the issues it lost,  so one key aspect of Section 104 is the phrase “cannot pay any part of its costs and expenses”.

    What does that mean?  Section 104 doesn’t come up all that often in Tribunal cases and when it does, it tends to be a side issue and a bit murky.

    In this case, for instance, the Appeals Board doesn’t consider 104 to be relevant because the Owners  Corp hadn’t yet paid for legal advice from its admin fund, in contravention of S104.  However,  it leaves open the possibility of a future challenge if it did.

    This other case at the Appeals Panel also spells out that any breach of Section 104 has to be challenged once the breach has occurred (in my non-legal opinion). According to that ruling, the Tribunal has no power to order the OC to comply with Section 104 but it does have the power to enforce it if it’s breached.

    Now, I have to stress that his is my own, non-legal opinion.  Just reading the two cases cited, it’s clear that the arguments are pretty complicated and arcane and open to wide interpretation.

    You need professional legal advice if you are going to pursue this and you then need to ask yourself if it’s worth it in the end.

    #63803
    kaindub
    Flatchatter

    Boy this thread deviated.

    What are you fighting about? Surely it’s the breaches of the act that are the central issue you want remedied.

    The issue of costs is just the icing on the cake and not really what you’re fighting for.

    Fighting this side issue is just going to make the OC more mad, and inclined to oppose you more,which ends up in a bigger and more expensive fight.

    The fact that the OC has obtained legal representation puts you at a huge  disadvantage. I’m going to predict that you are going to lose( unless you lawyer up as well) and the OC is going to go for costs against you.

     

    #63824
    Jimmy-T
    Keymaster

    Boy this thread deviated.

    From what? The question was asked by the OP and deserves an answer.

    It’s a complex issue and there are several unknowns.  Are we supposed to wait for legal submissions before we explore the issues?  Or do we map out some of the possible scenarios to help people make informed decisions?

    The issue of costs is just the icing on the cake and not really what you’re fighting for.

    And you know this, how? It was the second point mentioned and is obviously important to the OP.

    • This reply was modified 4 days, 2 hours ago by .
    #63850
    Investor13
    Flatchatter
    Chat-starter

    MLC did respond but they don’t have the capacity to deal with new matters.

    Can you tell us roughly what part of the Act that NCAT isn’t enforcing?

    The sections of the SSMA 2015 that were not enforced are as follows (with breaches continuing):

    Lack of Transparency. SC Meetings are not accepted practice for decision making, and thus not recorded in OC Minutes File. Sections 43, 9, 13, 2

    Repair/Maintenance/Safety issues do not receive attention. Section 9, Section 106, Section 115.

    SC over-ruling OC. Section 36(2)

    SC will not issue Breach of By-Law Notices. Section 146 (1)

    SC not attending to OC Business. Section 37

    Lack of security of items on common property. Section 9 3c, Section 106.

    Unauthorised work. Section 108 2b, Section 36 3a.

    #63859
    Jimmy-T
    Keymaster

    OK, what grounds did the Tribunal give for dismissing these claims?

    #63899
    Investor13
    Flatchatter
    Chat-starter

    What grounds did the Tribunal give for dismissing these claims?

    Jimmy-T. Appreciate your interest. Happy to reply to you personally but have concerns about providing specifics on this Forum.

    Final Submissions – December 2021. (NCAT Hearing – January 2022.) NCAT Decision – May 2022. It is my understanding that Submissions and the NCAT Decision are a matter of Public Record. Without the requested Orders, problematic issues are ongoing.

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