Q1. There is s 135 of the NSW “Strata Act” which in effect says the by-laws apply to the owners. So in a context the owners are legally obliged to observe them.
Probably better to say there are potential consequence for not observing the by-laws.
So, the by-laws are applicable to the committee members (assuming they are owners) and there can be consequences for breaking them. It might be via a notice to comply with a subsequent application to NCAT for a penalty if compliance is not the result. The fine money going to the OC.
There is the option to just go straight to NCAT and seek an order for the owner to be restrained from the non compliance. That application can be made by the owners corporation OR just an owner against another owner and then there is when the committee members are breaking the by-laws which is grounds to have them removed from the committee under s 238.
s 238 (2) of the SSM Act says “(2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has—
(a) failed to comply with this Act or the regulations or the by-laws of the strata scheme,
I feel if the SC member is a problem then ‘go for the throat’ and make application for mediation through Fair Trading, owner v owner, which is free, with a view to seeking a s 238 removal order.
That will put the wind up then.
Q2. Simply no. There is no legal requirement for the SC to enforce the by-laws although NCAT Senior Member Vrabac does say the following in the Luong case
106 .The circumstances in which the management structure may not be functioning or functioning satisfactorily include where the relevant level of management;
- Fails to exercise power or make a decision to prevent a contravention by lot owners and occupiers of their obligations under the Act, including breaches of by-laws
By-laws are difficult to enforce because people are under the ‘the rule of law’ which has no real interest in the mundane petty day to day issues of the plebs. There is a process, a few options, which are slow vexing, adversarial and often unknown to the average owner.
“The offending Committee member is hardly going to agree to make up the majority and thereby impose a penalty on himself.”
It is one thing to send a notice to comply it is another to seek a penalty. The two are related in a process but are separate things.