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  • #8869
    HappyNow
    Flatchatter

      Hello.  I received a Miscellaneous invoice from the complex’s Strata Manager requesting payment of an invoice for repairs done to a common property gate due to damage they claim was made by our removalist van when we vacated.  The invoice to the EC states there is a call out fee, labour, lubrication and a ground stop amounting to $312.00 + GST.  Their invoice to me states ‘Unit 19 damage to gates caused by van Mar 13’. I replied with a letter stating the gate was broken prior to the van opening the gate and we have a photo of the gate being kept closed with a brick pillar.  The removalist did notify us when they opened the gate that the arm was broken prior to them opening the gate.  We requested a scope of works ande ngineer’s report on the nature and cause of the damage,  from the Strata Manager who then returned with a letter stating ‘my letter had been forwarded to the Executive Committee who gave it due consideration and advised they do not wish to enter into any correspondence regarding this issue as they consider it to be a matter between myself and the removalist’.

      Since our removalist was only on the site on 8th March and not the 13th, can we deny liabilty altogether?

      They then went on to state ‘the amount will therefore remain on my account until it is paid and it will bear interest.  It then went on to state ‘As per the legislation, if there are amounts outstanding on my account at the time of the general meeting, I will be deemed unfinancial and will lose my voting rights’.

      What is your advice regarding this please.  We are still the owners of the unit and have chosen to vacate and rent it out until this Executive Committee have moved on. As it is an over 55’s complex, we hope this will be soon. 

      If I pay the invoice, does that indicate I accept responsibility for the damage? As the unit is being leased, I can negative gear the cost so will not be out of pocket.

      I am prepared to take this to CTTT but do not want to be classed as ‘unfinancial’ should an EGM be called prior to the case being heard.  I would seek costs plus interest of course.  Should I obtain statutory declarations from the removalist company and other owners in the complex regarding the gate indicating they were aware the gate was broken prior to our removalist van being onsite?  Do I just complete the CTTT form and present it to the Strata Manager?

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    • #18648
      scotlandx
      Strataguru

        For a start, an invoice of that type does not form part of your levies.  So, the advice from the strata manager that failure to pay will mean you are unfinancial and unable to vote is incorrect.  

        If you want to deny liability, put your position in writing and make it clear that you will take it further.  When you pay your levies make it clear that it is for the levies and not the disputed amount, because they may set off $312 against the repairs so you are short $312 on the levies.

        I don’t think they can charge you interest on the amount, they certainly can’t under the Act because it isn’t a levy.

        As a general observation, just because someone sends you a bill for something, it doesn’t mean you owe them the money!

         

        /

         

        #18649
        Whale
        Flatchatter

          In addition……..here’s the relevant section of the NSW Strata Schemes Management Act (1996) that speaks to voting rights, including my emphasis (bold):

          Schedule 2, Cl 10(8)

          Voting rights may not be exercised if contributions not paid.

          A vote at a general meeting (other than a vote on a motion requiring a unanimous resolution) by an owner of a lot or a person with a priority vote in respect of the lot does not count unless payment has been made before the meeting of all contributions levied on the owner, and any other amounts recoverable from the owner, in relation to the lot that are owing at the date of the notice for the meeting.

          It all depends on an interpretation of often poorly worded legislation, but unlike Scotty, mine is that as the alleged damage was to the common property and you’re an owner, non-payment of the O/C’s invoice would indeed preclude you from voting at a General Meeting, except for those Motions that require a unanimous resolution.

          I’d also suggest that you check for any relevant Special By-Laws that your Plan my have registered.

          Whether or not my interpretation is correct, it sounds to me like you’re on firm ground with regard to proving your “innocence”, and your next step should be to quickly advise the Secretary of your Executive Committee (E/C) and your Strata Manager that you again wish to discuss the matter in an effort to avoid the involvement of the CTTT.

          Try to avoid the CTTT that many posts describe a the proverbial “chocolate wheel” in terms of the decisions made, but if your E/C and/or Strata Manager doesn’t respond positively or at all within a timeframe that’s acceptable to you (say 7 days), then you need to seek assistance with more formal mediation by completing and lodging THIS form, and of course by taking all relevant evidence to support your claims.

          #18652
          HappyNow
          Flatchatter
          Chat-starter

            Thanks Strata Manager and Whale.  I did put my argument in writing and they said they would not discuss it further and the invoice will remain on my account accruing interest until paid and my voting rights denied.  Strata Law seems very unfair if an EC can direct a Strata Manager to raise a Miscellaneous invoice on someone and then not discuss it.  The lack of maintenance by this corrupt EC led to the gate remaining un-repaired in the first place.  The over 65 year old men who ‘try’ to attend to the maintenance of the property have failed dismally.  In their attempts to save money, the property has suffered at their hands.  They do not want levies increased and they do not want the sinking fund levies increased either as ‘it will be someone elses problem in the future’.  This gate had a brick pillar holding it closed prior to our removalist truck entering the property.  We have a photo showing the pillar propping the gate closed. The drive is overgrown and all owners recently received a note that no gardening was to be undertaken unless agreed by the EC.  I can pay the miscellaneous invoice and negative gear it and it will go away however is it right that they can charge me for something I am not responsible for?  The invoice from the repair company does not indicate any damage by a truck or van as I indicated in my initial submission.  The Strata Manager invoice to me says Unit 19 damage by removalist van.  I know they dont like me because I keep pushing for justice and fairness.  I think i need to fight this injustice.

            #18653
            Whale
            Flatchatter

              ….and in NSW the correct way to do that is via the Office of Fair Trading’s mediation process (refer to the link on my last post).

              Scotty’s advice about ensuring that your payment of Levy Contributions goes against that invoice and not towards the total (i.e.including the miscellaneous invoice) is also very relevant.

              Your Owners Corporation has a legal obligation to “properly maintain the common property”, but that’s probably a discussion to be had via another post when you’re past the current issues.

              Good luck!

              #18654
              kiwipaul
              Flatchatter

                @Whale said:
                Scotty’s advice about ensuring that your payment of Levy Contributions goes against that invoice and not towards the total (i.e.including the miscellaneous invoice) is also very relevant.
                Good luck!

                I totally agree with this sentiment.

                I don’t agree with Whales claim that the alleged debt can prevent you from voting, but I cannot find anything to support my view OR Whales view and as was said the legislation is vague on the subject.

                To my mind allowing a Strata to disallow voting on the unproven claim that a debt is owed is giving unscrupulous strata a way of manipulating voting to the detriment of ALL owners.

                #18659
                scotlandx
                Strataguru

                  I don’t agree with Whale’s position (which is very unusual), because the legislation refers to amounts recoverable from the owner.  Without going into all sorts of legal technicalities, I don’t beiieve that this invoice would fall into that category.  In that respect I would distinguish it from say, a court order to the effect that an owner has to pay an amount, or an agreement between the owner and the OC that the owner will pay something (e.g. an owner has agreed to pay maintenance costs for a part of common property for which they have exclusive use).  What you would be looking for in terms of an amount recoverable from an owner, is a debt for which they are liable in legal terms.

                  If the OC could raise invoices against owners for miscellaneous repairs etc., you would open the door to abuse.  I don’t think that is the intent of the legislation, which is badly drafted.  As SlapShot has pointed out, it is ridiculous that he/she can have an invoice sent to him/her, and then be told it is not open to discussion.

                  SlapShot – it is up to you what you do, and also whether you want to spend time on disputing it.  If you pay the invoice you are accepting responsibility, and of course the OC may do it again, e.g. claim that your tenants have damaged common property.

                   

                  #18738
                  HappyNow
                  Flatchatter
                  Chat-starter

                    Thanks everyone.  I have sent a letter asking for further justification that this is indeed a valid invoice on an owner.  I have refuted the interest charges and stated I want any levies paid to go against a levy invoice and not the miscellaneous invoice.  I have requested this matter be resolved no later than 30th June or I will go to CTTT for adjudication.  I have included an insurance issue (water damage to internal walls and one common property wall externally) whereby my agent has requested a work order be raised for an insurance assessor to assess the damage and report if it is a building insurance claim or a personal claim.  Of course the external common property wall WILL be a building insurance and/or Owners Corporation insurance claim.  The internal wall which runs along the boundary of the external part of the property with which the soil level is behind the wall should also be a builders and/or owners corporation insurance claim.  Inept Executive Committee members should NOT be on the committee if they do not wish to be there having to contend with problems of a complex.  They should stand down and let those who do want to be on be elected to stand.  One day I will get there and justice and fairness for all will prevail.

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