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Dear Flatchat Readers,
Re: Seeking Guidance on Unfair Costs Order Following Strata By-Law Vote
I am writing to share a cautionary tale based on my recent experience with a costs order from a NCAT determination. I believe it is crucial for all strata members to be aware of the potential consequences associated with voting on strata by-laws.
Ten months ago, I voted against a proposed by-law that aimed to grant exclusive use of common property already enclosed by fencing two years prior.. The by-law lacked a sunset clause, which raised concerns about its long-term implications. To my surprise, I recently received a costs order from NCAT for my dissenting vote.
The strata secretary initiated the NCAT action as a private party, bypassing mediation even after a strata members’ solicitor countered the application, citing the body corporate’s unnecessary rejection of the proposed by-law.
During the Extraordinary General Meeting (EGM) where the vote took place, no information was provided by the strata manager regarding the potential consequences of voting against the by-law. I assumed the process was democratic and unconditional. It is disheartening to discover that my exercise of democratic rights have resulted in a financial penalty.
As a strata, non-committee, member, I was not privy to information related to the NCAT process, and I did not attend any hearings. The strata secretary and his spouse represented themselves at the hearing and witnessed their claim dismissed by NCAT, followed by a successful counterclaim presented by the strata members’ solicitor.
What troubles me is the 50:50 split of the costs order between the two members who voted against the by-law, me and the strata secretary. This division appears unfairly punitive, especially considering I was not instructed to participate in the legal process and have not been provided with a breakdown of costs. The representing solicitor has given me a mere seven days to agree to the costs order or face the threat of doubled costs.
As a pensioner, the financial burden of these multi-thousand-dollar costs is overwhelming, and attempting to secure professional guidance, especially during the holiday season, poses significant challenges.
I am reaching out to the community for any suggestions or support you may offer. This situation is bewildering, and I believe it is important for us to collectively address these issues and ensure fairness and transparency in our strata dealings.
Thank you for your attention, and I appreciate any assistance or advice you can provide.
- This topic was modified 11 months, 3 weeks ago by .
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There is something missing in your story.
You can’t be taken to NCAT for voting against a motion. Is there something else that they took you to NCAT for?
Did you or the secretary initiate the action in NCAT?
And it’s unusual that you would not have been notified of the court dates.
if you or the secretary were the initiator of the action, and then don’t turn up to court – well the courts do not look at such conduct favourably, and as well as getting a judgement against you they will penalise you by awarding costs against you
Perhaps a better explanation of what the events were could help us to help you.
because I voted (democratically) my dissenting vote will carry the costs claimed by the solicitor of the OC member
It sounds like you are saying that because costs were awarded against the owners corporation, and you obviously are a member of the OC, you are having to bear your share of the costs award.
If that’s the case, I assume this is a small strata scheme (which would have been handy to have had spelled out). Assuming all that is the case, this is not a penalty of costs against you personally, but against the OC (excluding the prevailing party) for which you have to pay your share.
This is a quirk of strata law which means that owners who fail to prevent Tribunal action, even for things with which they disagree, can end up paying for decisions with which they have no issue.
In this case, it sounds like your secretary is at fault but, as long as they were acting in good faith – i.e. they didn’t know this was going to happen – then there is no recourse that I can think of for recovering the payments.
However, it may be worth contacting Marrickville Legal Centre, which provides free legal advice for pensioners in need across NSW (not just Marrickville).
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.
I only voted against a bylaw, two years late, but according to NCAT two years late is okay. My thoughts were to have the bylaw modified to allow for a ‘sunset’ clause
Unless you proposed a “sunset clause” as an amendment to the by-law, at the meeting at which it was discussed, then the reason you voted against it is pretty much irrelevant.
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.
Good morning new2newy,
Take Jimmy’s advice and call Marrickville Legal Centre to set up an appointment.
I took a friend there some time ago and recall what the process was in her case:
1. PHOTOCOPY all related paperwork and take the photocopies with you. Leave the originals at your home;
2. OUTLINE your case to the junior member of the team, who’ll be the person you meet at the initial appointment and
3. STAFF (higher up the food chain at the Centre) will look over your case and contact you in due course.
Note: (a) Emphasise when calling for an appointment that you’re a pensioner; and
(b) On the phone, press the point that the matter is one of financial hardship.
Take Jimmy’s advice and call Marrickville Legal Centre to set up an appointment.
There’s an online form you can fill in that will tell them whether you qualify for their free help. Strata – Marrickville Legal Centre (mlc.org.au)
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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