Charged a fee for receiving Notice to Comply

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  • 09/10/2021 at 7:57 am #59341
    JMM
    Flatchatter

      Who pays the admin fee applied to the issue of the notice to comply – the OC or the Lot Owner?  Does invalidity of the notice or later finding (tribunal) that there is no breach affect who pays?

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    • 09/10/2021 at 10:44 am #59353
      chesswood
      Flatchatter

        Assuming you’re in NSW, what admin fee? The secretary or manager sends a letter and that’s it. If the recipient doesn’t comply, the OC might start NCAT proceedings by filing. The fee will need to be paid by the OC when they file.

        09/10/2021 at 10:49 am #59357
        Jimmy-T
        Keymaster

          I think JMM might mean a bogus admin fee that some schemes think they can add to the the cost of enforcing by-laws.

          This would be highly dubious even if the OC won their case. If they lost, it would be ridiculous to still impose it.  These admin fees are often intended to deter owners from fighting notices to comply at NCAT.  I have a feeling they may be illegal as even NCAT will not award costs except in special circumstances.

          JMM should ask for a formal letter withdrawing the charge, and propose a motion at the next committee meeting that they investigate the legality or otherwise of such charges.

          The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
          09/10/2021 at 12:52 pm #59358
          JMM
          Flatchatter
          Chat-starter

            Many thanks for such swift responses – I’m in NSW.  Apologies for not being more specific, I’m attempting to be objective and didn’t put enough detail.

            I have been issued with an invoice from our strata manager claiming the cost of issuing notices to comply with 3 strata by-laws.  The email says:

            “Please find attached an invoice due for payment on (same day as email).”

            Attachment says “Miscellaneous tax invoice on behalf of the owners of SP xxxx.  Lot x:  Notices to Comply – date of meeting.  GST $30.00 Total $330”. Cheques should be made payable to The Owners xxxx”.
            There is no commentary indicating why the fee is attributed to me or whether it is the whole fee or my share of a fee being split amongst the other Lot Owners.

            Background:
            I received 3 notices to comply with by-laws on 1 October generated by the strata committee meeting of the owners by written vote only.  I am an owner and abstained noting conflict of interest as the vote was for/against a motion against me. The complainant didn’t reveal themselves!

            The owners are furious at my supporting council in a separate issue relating to our strata non-compliance with a DA condition and resultant fine. I am being blamed for this because I unwittingly drew council’s attention to our no DA when pursuing another matter.  Our strata has not taken the directed action and now has a $6000 fine (strata manager/secretary have apparently ignored the notices…).  I am now the subject of vexatious complaints.

            It seems I’m being charged for the administration of the notices to comply with the by-laws and it is the legality of this for which I am asking the hive-mind.

            09/10/2021 at 4:43 pm #59361
            JMM
            Flatchatter
            Chat-starter

              I’ve checked the management agency agreement (November 201 6 September model) and there is a clause that says:

              ”Expenses and charges
              Building Notices & ByLaw Breach warning $55 Per request (potential recovery)”

              It does not say who this is charged to.  I would assume that since this is an agreement with the OC that is to whom the charge be applied, not the individual Lot Owner, though “potential recovery” suggests there could be follow up with the person accused of being in-breach.  This is probably why I have received the invoice though the makeup is not clear).

              Would being found not to be in breach by the tribunal make the charge to the individual owner invalid?

              10/10/2021 at 9:36 am #59364
              kaindub
              Flatchatter

                The agrrement is between the OC and the strata manager. Notwithstanding any other argument, it’s the responsibility of the OC to pay. There is no mechanism in the act to pass on any fees charged to the OC to an owner.

                Potential recovery only applies if the court orders the lot owner to pay costs, which requires a hearing in NCAT.

                There was no needs for you to abstain from voting. There was no conflict of interest, even if they were voting against your lot.

                If your strata manager and committee are behaving as you describe,you should consider getting both dismissed at NCAT. Even though they may not be happy with the situation with council, their duty is to act in a lawful manner, and in the best interests of the OC.

                The fact thst the committee got to a situation where the OC was fined could also expose them to having to compensate the OC.

                 

                 

                11/10/2021 at 1:43 pm #59393
                Jimmy-T
                Keymaster
                  kaindub wrote:

                  The fact that the committee got to a situation where the OC was fined could also expose them to having to compensate the OC.

                  Just to expand on that point, strata law indemnifies committee members for bad decisions made in good faith – i.e. they didn’t know they were making an error.  Failure to abide by council orders is hardly acting in good faith and they should possibly carry the can for that decision rather than passing the costs on to the other owners who were not party to that decision.

                   

                  The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
                  12/10/2021 at 3:30 pm #59437
                  JMM
                  Flatchatter
                  Chat-starter

                    Thank you both.  Feeling much more empowered by your sensible and clear advice.

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