Can an owner take the Strata Manager to NCAT for failure to perform duties?

Having done an NCAT application in the last two years, the application form only permits a lot owner to nominate the OC or the committee as the respondent.

Its requires an application by the committee to name the strata manager.

Hi Tim,

Welcome to my world.

Kaindub is correct: action by an owner under the SSM Act at NCAT can only be against the OC or committee members. Or the OC and committee members.

Jimmy is correct when he implies that under the contract offered by an OC to an agent, the latter is immunised against alleged breaches of the SSM Act inasmuch as such breaches would be held by NCAT to be committed by the OC. This of course gives rise to a related question – not asked by you but pertinent to your case  and that of others in the same boat –  which is: why are those owners who nominated and/or approved hiring such a manger not automatically on the hook  for the appalling outcomes of their decision to hire him? In many cases the approval at a general meeting to hire a manager is not unanimous.

I suggest you do as I did, when I had an issue with a strata mgr doing the bidding of the committee in violation of his duties under the act under which he is licensed: the Property & Stock Agents Act.

Make a formal online complaint to Fair Trading about the agent and pony up evidence how you believe he breached the Property & Stock Agents Act. You can do this as an owner. You don’t need others to join you nor do you need a general meeting to get this ball rolling.

If FT agree that your complaint is reasonable, they will contact the agent and if needed, investigate. One outcome is that their investigation will prove your allegation(s) and if so, FT will tell him that they found him to be “non compliant” with the relevant legislation.

The fly in this ointment is that FT does not have to tell you, the complainant, what sanctions/penalties/directives/instructions they issued/levied on him.

If you’re lucky, you’ll have the outcome I had: (1) FT investigated; (2) FT informed the agent that in their view his behaviour was “not compliant”; (3) FT told me that they found the agent “non compliant”; and (4) quick as a wink the strata manager resigned and we had to find a new manager.

I am rapidly reaching the conclusion that Fair Trading NSW will do anything in its powers to avoid holding Real Estate agents and especially Strata Managers accountable for even major indiscretions that fall short of criminal activity such as fraud or theft.

Fairly recently, Strata Community Association (NSW) was celebrating having achieved Professional Standards Status, something they trumpet at every opportunity.  What does this mean?  According to their own website:

“This means strata manager members of SCA (NSW) must adhere to a Code of Ethics including professional standards and is monitored by Professional Standards Australia.”

And what is their code of ethics? Have a look here: Code-of-ethics-and-Complaint_management-form-fillable-2021-UPDATE-JULY-2022.pdf (strata.community)

Also, it appears that once again SCA is promoting itself as the best body to represent strata owners, with strata managers telling owners not to join the OCN as the SCA will provide the same services for free. But they can never answer this question: in a conflict between owners and strata managers (one of the most common areas of contention) whose side do they take?

Jimmy, I agree about NCAT being reluctant to hold strata managers to account. Could it be that the regulations under which FT/NCAT police the behaviour of strata managers were proposed by the strata management industry?

Hey again TimSP,

Re: Post 2 of 2

5A. Independent of the outcomes of the strata manager doing as the OC instructs him, when you have evidence that the strata manager is failing to abide by the conduct expected of him as listed in the Stock & Station Agents Act, THEN you should complain to NSW FT about the strata manager in his own right. This is quite separate from any complaint you may have against the OC. In your complaint, the more instances of what you consider impropriety you can show, the better. For instance, you could mention a lack of transparency (the manager did not reveal any conflict of interest); any flouting of the SSM Act (eg taking longer to issue minutes than is mandated under the SSM Act); on the same matter, the agent telling you one thing and telling another owner something different etc;

5B. Some strata managers don’t want to be bothered by owners other than SC members. Then again many strata managers love being bothered as they charge for every email or call received and made. In regards to you being told not to communicate directly with the strata manager, if I were you, I’d cover my back by emailing the SC on issues relevant to the scheme with a CC to the strata manager. Or vice versa. Wait to see if anyone tells you who you can contact or if your emails are ignored;

5C. Failing to list nominations – did you provide the names in time? Can you prove this? If yes, then this is a good example the strata manager has breached code of conduct demanded of him under the Stock & Stations Act;

Insufficient evidence could lead NSW FT to conclude that a “potential” breach occurred. So your job is to either pony up more evidence in that matter to convince NSW FT that a breach did occur. Alternatively, more instances of “potential” breaches should convince NSW FT that there’s a pattern of something not quite right going on.

Bear in mind, both NCAT and NSWFT get truckloads of complaints, many that don’t hold water. But in order to establish which complaints are prima facie justified, NSWFT and NCAT need time to assess them. So don’t be surprised about the time between your filing and when the matter is heard.

That said, before going to NCAT against the OC (under the SSM Act) applicants would have to apply for mediation with the other party under the wings of NSW FT. While attending mediation can be turned down by the respondent, in this case the OC (for the SC) it is in most cases a mandatory prerequisite before you can apply to NCAT. If you name the officers of the SC in your suit, then they also have the option to turn up or not to mediation. If a respondent  or joint respondent(s) fail to attend mediation, the fact remains that you ATTEMPTED mediation and NSW FT will send you an email confirming this. That’s all you’ll need to apply to NCAT.

Hi TheHood

You mention: “You didn’t mention FT might re-educate the recalcitrant agent”

true i did not, because (a) who knows if they will educate him; (b) is there a point inasmuch as how can FT know if the education will stick with him; and (c) is the re-education even mandatory?

You also mention: ” one might find themselves asking what is the point of the rules if there is no real consequence, they might also find themselves asking how did this person qualify for this licence … so many questions”.

I agree 100% with you.

It seems to me that the rules governing (in this case) strata agents  – but seemingly applicable to all real estate agents –  were written by the strata industry itself.

How is it that if I complain and FT confirms my allegations, than I am not allowed to know what penalty is handed out to the agent? What an outrage.

What next? A thief steals your car and a pressure group of ex cons lobbies the state not to disclose any penalty handed down to a thief?

Also why must an agent be the subject multiple customer complaints in a month before he goes on a name and shame register?

FACT:  No NSW strata manager has ever lost their licence just for being really, really bad at their job.  No SCA member has ever been bumped from that self-serving organisation for the same reason. It’s an body created and maintained to protect strata managers and their service providers, regardless of what other services it may provide.

And that’s fine, until they start telling people (usually via naive journalists) that they represent owners. If that’s the case, how can they justify 20 per cent commissions on mandatory insurance premiums?  The SCA-NSW could end that with the stroke of a pen.

And how about embedded networks – a way of transferring the cost of infrastructure from the developers to the off-the-plan purchasers?  What do some (but not all) strata managers do?  The SCA-NSW’s hierachy issues statements saying they support reviews of the system, at the same time as the companies they own are loading up agendas for the initial AGMs  with contracts that the majority of purchasers – especially first-timers – can’t read and wouldn’t understand if they could.

It’s utterly shameful and if you want to test if the SCA-NSW represents owners, take a complaint against a strata manager to them and see whose side they are on.

@sealion Writing as someone who complained to NSW FT about a strata manager, and was successful in having him resign as SM, please note the SSM Act is not the address for grievances. The correct address is the Property and Stock Agents Act 2002.

Give NSW FT a call on 13 32 20 asking how to file a complaint online about the SM’s conduct as you believe he is not complying with the conditions of his license as per the Property and Stock Agents Act 2002.

As an aside, your post was unclear. If you already filed a complaint under the above act, (which is hard for me to determine), call FT and ignore anything to do with stratas when you hear the options. Select “property or real estate professionals” or similar and talk through you  situation with the officer that takes the call. Ask him/her what evidence from you is required etc. I found that unit of NSW FT to be on the whole pretty good, given the straight jacket in which they work. Note they cannot give legal advice but can hint at what they find to be “non compliant” and what you need to make that case.

Oh and so yourself a favour: do NOT give the SM a heads up of what you’re doing.

Separately and simultaneously, you can complain to NSW FT seeking to invalidate the resolution. To do this you need to apply online for mediation b/w you and the OC on the issue. You cannot waltz down to NCAT without first having attempted mediation. Note the OC may not turn up to mediation. No problem. You attempted it and that’s all you need in order to go to NCAT.

Make sure when you talk to NSW FT for guidance on mediation that you clarify that the resolution that you oppose was passed and is listed in what effectively are DRAFT minutes. They are the true minutes only after they are confirmed at the next general meeting (it need not be an AGM). I mention this in case such a distinction is critical for the purposes of invalidation.

Good luck.