Assistance with NCAT Appeal without Lawyers

Investor13 wrote:

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.

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.

Investor13 wrote:

I just need NCAT to fully support the Act.

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

Investor13 wrote:

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.

kaindub wrote:

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?

kaindub wrote:

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.

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

If it’s the case I just read through, where the applicant has brought more than 70 cases in ten years against the owners corporation, I can see why the court dismissed it!

As others have advised, I’d definitely let this go.

Still very interesting and informative to read through cases and see which ones are dismissed versus which ones are successful, and why. It’s quite clear. Very helpful.

Investor 13, this is indeed a complex case.

I have some experience in going to NCAT against dictatorial opaque committees and want to share three points that may inform your decision making.

1. Kaindub wrote

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.

This is very true. Irrespective of whether the NCAT member hearing the case is generally predisposed to an OC or to an individual owner, or to an applicant or to a respondent, IMHO one attribute is common to them all: they want the participants to the case to be quick, concise and on-point. There are no do-overs (at a later date) if you feel your presentation was poor.

2. JimmyT wrote

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.

All well as good as far as it goes, but in my experience it doesn’t go anywhere, because s. 104 doesn’t spell out (a) what time line the OC has to raise the special levy and (b) what happens if it pays its expenses and doesn’t raise the levy.

I won a case in March 2022 against an OC who paid for an agent to support them at the hearing.The committee ran their defence, the agent was there seemingly to bolster their position. In 3 hrs she answered 3 questions she was asked by the Tribunal.
Prior to the hearing, there was no general or committee meeting of the OC to vote for her to attend nor any meeting to approve her fat fee. The day of the hearing she debited the trust a/c with her fee.
Fuming, I complained to the agent. Told the agent about s. 104 which either she did not know of (and that speaks volumes about some of those individuals who so-called “manage” stratas) or she and the committee had no interest in excluding me from contributing.

Long story short, some time after I told the agent to educate herself by speaking to NSW FT,the agent informed me the committee agreed that I should be excluded from contributing to the levy and they will raise this issue at the AGM this Dec. This is NINE months after I (as part of the OC) was debited.

I called NSW FT and was told that the committee and agent are extraordinarily unreasonable and was recommended to take the matter to Mediation and prepare for a hearing at NCAT, because whatever the committee/OC/agent say at Mediation is not worth a hill of beans as it is non-binding. In my experience, at Mediation, an OC says what they want to say in order to buy time. That is, they often agree to what is asked by an individual owner in order to appear fair, with zilch inclination to abide by their agreement.

In April I applied for Mediation. It will be heard at the end of July. Quite a backlog at FT I hear.

3. Some have suggested you may need a lawyer.

You must first off calculate the cost of the lawyer versus your expected gain in dollars. Even if you lose the case, you are still up for the lawyer’s fee and if you win the case, you may still be out of pocket.

In one case I took a neighbour to NCAT and the local court for driving my tenants away with his noise (he renovated his unit, made an incredible racket over months and made living in my unit by the tenants unbearable).

Given I lost at NCAT and the local court, either I was not on-point or those who heard the case saw it differently to me.

After the case, while still at the local court, I was approached by a gentleman who introduced himself as a barrister. He noted that while I lost,  he is confident he would win at a higher court (Supreme I think he mentioned) if he represented me as he did not agree that the court was right in its interpretation of the law.

But the penny dropped when it was clear that notwithstanding the tidy sum I was seeking may well be awarded in my favour, after paying his handsome fees, I would be in the red again.

So yes, lawyers may help you, but only if it’s cost effective.