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  • #72063
    timSP
    Flatchatter

      Can you take Strata manager to NCAT for failings of SSMA and Property and Stock Agents Act 2002 as an owner?

      I have an existing NCAT application with the Tribunal (NCAT NSW) to remove Certain committee members due to a litany of serious failures to conduct this duties appropriately, as well as mis-management of the scheme, including failures to abide by the SSMA.

      The strata managers also failed to abide by SSMA, and this was agreed to by Fair Trading which acknowledge there may have been a potential breach. (There definitely was, however the actual wording from FT is so soft its pathetic!)

      They also failed to abide by the the REI NSW code of conduct, including failing to declare. conflict of interest, exercise their duties with, care, carried out targeted discriminations, and showed bias towards people.Yes pretty much failing nearly of the code points! Whats even more disgusting is that the strata manger involved is a very senior member of  REINSW.

      Question is, Can you include the Strata manager/s as a respondent in the case for NCAT to take actions for their failings?

      • This topic was modified 3 months, 1 week ago by .
    Viewing 13 replies - 1 through 13 (of 13 total)
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    • #72077
      kaindub
      Flatchatter

        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.

        #72096
        Jimmy-T
        Keymaster

          Not contradicting, but a lot of strata schemes give the strata manager full delegated powers so (he says, donning his Rumpole wig) wouldn’t the strata manager be implicated by default anyway?  Or would they be covered by their iniquitous contracts that say they can never be held responsible for anything they do, ever?

          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.
          #72097
          TrulEConcerned
          Flatchatter

            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.

             

             

            #72112
            timSP
            Flatchatter
            Chat-starter

              Thank TrulEConcerned Jimmy-T kaindub

              As part of a current NCAT matter (against the committee)  I applied to add the SM/s to as respondents, but it was refused for a number of reasons (below in italics), but it makes sense as per what’s been outlined previously.

              1 The applicant’s application to join XXXXX and XXXXX as respondents to
              the proceedings is refused.
              Reasons:
              a). The applicant seeks orders to remove members of the strata committee. The applicant
              also seeks orders against the Owners Corporation.
              b). [Name Redacted] is the Licensee in charge of the strata management and one of the
              strata managers assigned to the plan. No orders are being sought against him personally,
              and thereby, there is no basis on which to join that person individually as a respondent to the
              proceedings.
              c). It appears that [2nd name redacted] is also one of the employed strata managers assigned to
              the plan. The applicant seeks a general order that she declare any past or current conflicts
              of interests to the Owners Corporation. It is unclear on what basis the applicant can seek
              such an order which would only involve [2nd name redacted]and the Owners Corporation directly,
              and especially when the Owners Corporation is not seeking any such order. The applicant
              has failed to demonstrate any case on which he can seek such orders personally against an
              employee of the strata management company, and thereby, there is no basis on which to join
              that person individually as a respondent to the proceedings.

              I also made a complaint with FT for a number of issues I had with the SM,

              1. SM Stated that lot owners were NOT permitted to contact the SM, only contact is to be made via SC.
              2.  Failing to declare a conflict of interest with one of the senior strata managers who recommended that a close friend/partner quote for major capital works (and of course they got the contract!) and when queried refused to admit any conflict, in fact completely refute that there was ANY connection between the two!
              3. Failing to add lot owners nominations on the AGM agenda

              FT found that the SM had ‘potentially’ breached the SSMA for point 3, points 2 not enough evidence was produced (at this time) and point 1 the contract indicated this) according to FT, but I refuted it, it was clear whether or not lot owners  were not permitted to contact SM, it only said that the SC will nominated a person to communicate with the SM.

              It was like pulling teeth getting FT to admit that there was at least SOME potential breach of the SSMA. What’s even more frustrating is that the SM is a very senior member of REINSW! so there you go….

              Its interesting you say TrulEConcerned that the strata manager resigned in your case… I wish were that lucky!

              JT: I redacted those names – I’m sure it wasn’t intentional but we can’t allow the Forum to become an arena for personal accusations and finger-pointing.

              • This reply was modified 3 months, 2 weeks ago by .
              #72115
              Jimmy-T
              Keymaster

                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?

                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.
                #72125
                timSP
                Flatchatter
                Chat-starter

                  Jimmy-T @JT / moderater. – Apologies! Yes correct, I thought I redacted the names, but I’ve obviously missed where they appeared elsewhere. Thank you redacting and allowing the post. Much appreciated.

                  #72135
                  TrulEConcerned
                  Flatchatter

                    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?

                    #72136
                    TrulEConcerned
                    Flatchatter

                      Hey  TimSP,

                      Re: Post 1 of 2

                      Let me reiterate, by expanding on a few points made earlier. Sorry if it sounds repetitive, but I feel they are worth stressing:

                      1. NCAT regards the strata manager as merely the agent of the OC and hence while doing the bidding of the OC, the strata manager is not liable (for any unfortunate consequences). The OC is usually held liable;

                      2. Most management agreements b/w OC and strata manager emphasise this position. Especially, at least from what I’ve seen, in management agreements prepared by the Strata Community Association and offered to an OC by the strata management company;

                      3. As an owner under the Strata Schemes Management Act (“SSM Act”) you alone can take action against the OC for its failings. If you’re unhappy with the conduct of the Strata Committee (“SC”), in carrying out tasks dlegated to it by the OC, again that would be action against the OC. As stated earlier, if you really want to hammer home the point that the SC members have been derelict in their duties, by all means file a complaint against the OC and name the relevant person(s) on the SC as joint respondents in your application;

                      4. I agree with the NCAT statement about disallowing your order against the strata manager. As I understand it – and I am not a lawyer, just an owner who has suffered interactions with some committee members who are unfit to to sit on an SC – the OC is the entity that hired the strata manager and so only the OC can take action against him. You personally did not hire the strata manager. You may ask the OC to act against the strata manager for failing in his job, but if the OC declines to act, you cannot do so as an owner.

                      If you claim there is a conflict of interest, then that’s a feather in your cap against the sleepy SC. Can you show they did not act in good faith. In this regards, see the SSM Act, s. 260

                       

                      260 Personal liability of officers of owners corporations and others

                      (1) A matter or thing done or omitted to be done by any of the following persons, or a person acting under the direction of any of those persons, does not, if the matter or thing was done or omitted to be done in good faith for the purpose of executing functions as such a person under this or any other Act, subject any of the following persons or person so acting personally to any action, liability, claim or demand–

                      (a) an officer of an owners corporation,

                      (b) a member of a strata committee.

                      (2) Any such liability of an officer of an owners corporation or a member of a strata committee attaches instead to the owners corporation.

                      If you can prove a lack of good faith by the SC, then that’s a strong point.

                      #72137
                      TrulEConcerned
                      Flatchatter

                        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.

                        #72178
                        The Hood
                        Flatchatter

                          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.

                          It is beautiful isn’t it?
                          You didn’t mention FT might re-educate the recalcitrant agent.
                          If one reads the General Rules for Conduct (for all Agents) in the PSA Regulations then 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 like the objective quality of your post.

                          #72214
                          TrulEConcerned
                          Flatchatter

                            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?

                            #72988
                            crispy
                            Flatchatter

                              If you want to understand why FT is limp-wristed, one only needs to look at the industry as a whole and who provides them advice.

                              Spend 5 minutes looking at the CVs of the directors of SCA and compare them with the board of OCN.  One organisation is made of up of those who profit from the status quo, the other is made up of individuals with a diversity of industry experience but notably not in industries that benefit from the status quo.

                              Not all “industry associations” have the same goals, the NRA (National Rifle Association in the USA) comes to mind.

                              • This reply was modified 1 month, 2 weeks ago by .
                              #72997
                              Jimmy-T
                              Keymaster

                                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.

                                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.
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