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Recently a few owners in our strata applied to CTTT for an order to appoint a strata manager. It was rejected based on a biased decision. An appeal is being lodged.
Our secretary has in a notice to owners stated “the OC will incur legal costs defending the appeal…The legislation provides that our strata scheme can pay $9000 in legal costs without the need for general meeting approval. If the costs exceed that amount, there will be a motion passed at the AGM to approve the payment. If the appeal is unsuccessful the OC will be asking the Tribunal to order the appellants to pay the OC's costs.”
S80 of the SSMA states that there has to be a resolution passed at a general meeting to obtain legal advice.I am a confused. Is the secretary's statement correct? As you can see he has already decided that a motion will be passed.
The CTTT states that it is an affordable dispute resolution process………..I think not!
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Section 80D is governed by the Regulations.
Legal advise can be sought up to the amounts specified by the Regs without the need for a resolution at a general meeting; i.e. the EC can make the decision. Do not forget the power of veto over the EC given to owners by cl 11(2) of Sch 3 of the Act. If the owners do not want to spend the money then they can veto an EC decision if they have the numbers.
If the estimate exceeds the amount specified by the Regs, below, then you need an ordinary resolution from a general meeting for the spending.
SSMR 2010
15 Exemptions from need for approval for certain legal action(1) The seeking of legal advice, the provision of legal services or the taking of legal action is exempt from the operation of section 80D of the Act if the reasonably estimated cost of seeking the legal advice, having the legal services provided or taking the legal action would not exceed:
(a) an amount equal to the sum of $1,000 for each lot in the strata scheme concerned (excluding utility lots), or
(b) $12,500,
whichever is the lesser.
good luck with it.
Yet again, the inadequacies and ludicrousness of the Office of Fair Trading, The Consumer, Trader and Tenancy Tribunal, the NSW Strata Titles Act and its administration are demonstrated.
Poor Jane!
But then, what makes you think you'd be any better off with a strata manager? Choose carefully.
The CTTT *is* an affordable dispute resolution process. If the person taking the action is a pensioner, the entire process from mediation application to appeal decision costs only $15 ($5 mediation application, $5 adjudicator application, $5 appeal application).
To be awarded legal costs, the onus is on the Owners Corporation (as Respondent) to convince the Tribunal to award them, and the onus is high. Costs are awarded by the Tribunal *only* in limited circumstances.
The circumstances are when:-
(a) the application or appeal is frivolous, vexatious, misconceived or lacking in substance, or
(b) a decision in favour of the applicant or appellant is not within the jurisdiction of the Tribunal.
(Section 192 Strata Schemes Managing Act).
It's not about whether you win or lose. It's about whether the appeal was nonsensical, and few appeals are, even when they lose. So provided this appeal has some substance to it and the matter's within the Tribunal's jurisdiction, the Tribunal will not order the Appellant to pay the Respondent's legal costs.
Even if costs are awarded, the Respondent can't just ask for any sum it likes. It must be reasonable. The Tribunal has in the past ordered only a portion of the Respondent's costs to be paid when the costs seem unreasonably high, especially when it's not a complex matter (in which case only about an hour's worth of legal fees is reasonable).
I’m going to jump in here and say it’s all very well reciting what the CTTT says it’s supposed to be but the reality is very different. Many CTTT adjudicators and Members are notorious nitpickers and others are terrified of making perfectly reasonable interpretations of the law in case they are criticised.
They will, as a matter of policy, not advise individuals on how to prepare their cases (either complainants or defendants) they say because they can’t be seen to be taking sides. This is a cop-out. We had a case in this very Forum recently where a violent criminal was allowed to continue his appalling and intimidating behaviour because the plaintiffs had not known they needed one piece of paper (which they had on file – just not with them).
Anyone who takes a complicated case to the CTT without at the very least the help of their strata manager or, in serious cases a strata lawyer, is taking a huge gamble with their time and energy (and that’s a cost too). And strata managers will quite rightly charge you extra for helping defend a case.
The CTTT will tie itself in knots to avoid awarding costs, even under the circumstances cited. I have seen the most ridiculous cases argued and argued over again by obsessed residents for whom spending $75 to keep their EC and strata managers running around answering their complaints is a good few weeks’ entertainment. Do they ever have costs awarded against them? You have to be kidding!
Right now the CTTT seems to be passing even vaguely complicated issues on to the District Court for appeal, maybe because they have stuffed up so many times that they are an embarrassment to themselves and it looks good on the figures if they say they have dealt with cases “espediently”.
I know a couple of CTTT members – good, smart, dedicated people – who live in despair of the time servers, failed lawyers and “mates” who undermine what should be but isn’t a fair and inexpensive tribunal.
A panel of one strata manager, a strata lawyer and an experienced Executive Committee member could sort out most of these issues in minutes. Instead you have an organisation that claims to be simple, fair and cheap but which is actually complicated, bureaucratic and, one way or another, a terrible drain on people’s resources.
The cost of an application is far from the only expense. Even if you don’t hire your strata manager or a lawyer, time is money and wasting your time at the CTTT – and preparing the meticulous paperwork they demand – can be a particularly pointless expense. The only Strata professionals I’ve met who think the CTTT is working well, efficiently and inexpensively are the people who work for it (and even then …).
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.
My Uncle Jamal said:
The CTTT *is* an affordable dispute resolution process. If the person taking the action is a pensioner, the entire process from mediation application to appeal decision costs only $15 ($5 mediation application, $5 adjudicator application, $5 appeal application).
To be awarded legal costs, the onus is on the Owners Corporation (as Respondent) to convince the Tribunal to award them, and the onus is high. Costs are awarded by the Tribunal *only* in limited circumstances.
The circumstances are when:-
(a) the application or appeal is frivolous, vexatious, misconceived or lacking in substance, or
(b) a decision in favour of the applicant or appellant is not within the jurisdiction of the Tribunal.
(Section 192 Strata Schemes Managing Act).
It's not about whether you win or lose. It's about whether the appeal was nonsensical, and few appeals are, even when they lose. So provided this appeal has some substance to it and the matter's within the Tribunal's jurisdiction, the Tribunal will not order the Appellant to pay the Respondent's legal costs.
Even if costs are awarded, the Respondent can't just ask for any sum it likes. It must be reasonable. The Tribunal has in the past ordered only a portion of the Respondent's costs to be paid when the costs seem unreasonably high, especially when it's not a complex matter (in which case only about an hour's worth of legal fees is reasonable).
I have, at times, paid the $5 fee and still feel i am getting ripped-off for the service I receive.
I was involved in a matter where costs of almost $7k were awarded without question. The matter related to whether or not an SP had registered a by-law as was ordered by an Adjudicator.
The Member at the Tribunal hearing openly stated the order in question was poorly worded but still said the matter should never have been before the Tribunal … a little contradictory.
Both parties believed the same wrong interpretation of the Adjudicators order for months until the OC realized its mistaken interpretation and registered the order via s209.
The OC then decided to let the matter run and try to get costs just to be spiteful.
The costs were exclusively the time the OCs solicitor claimed she spent on the matter. It was an insane amount for what was a trivial matter that was only before the Member because the Adjudicators' order was poorly written.
The OC had secretly accumulated almost $7k in expenses. There was nothing in EC minutes about the matter and it was later revealed that half the EC (4 of 9) had quit because the other half refused to show the Treasurer the solicitors fee agreement which turned out to be for only $2500.The whole experience makes me very reluctant to appeal anything given costs, outrageous costs, can be awarded even when a matter has some substance.
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