- This topic has 21 replies, 5 voices, and was last updated 10 months, 3 weeks ago by .
-
Topic
-
This discussion started on the topic “Strata manager’s fee not divulged to owners” but evolved into these exchanges about how strata schemes pay the costs of running cases when they lose – JimmyT.
spmananger – thanks for your reply. To clarify, I meant “OC” at every instance and not “SC”.
Kaindub – your point on seeking an order that excludes me from sharing in the payment of the strata agent’s fee is a VERY good one. I assume this is facilitated by all other lot owners but me paying their share of the agent’s fee into the strata’s kitty, like a special levy, whilst the agent debits the scheme’s a/c. True?
Please indicate (a) under which order that could be applied for? And (b) can I now seek to be excluded from sharing in this cost ie via mediation and if necessary, bundle this matter up at subsequent NCAT hearing, if one is applied for?
I recall I DID include an order forbidding any committee member from being paid by the OC for his or her preparation for NCAT. While that motion, like most were not dealt with individually, the OC did say at NCAT that they, unlike the applicant, had no intention of debiting the OC for their preparation and time.
Tina – in my experience with a few strata schemes, the agent contributes very little. The $880 is VERY steep given the agent is not so experienced. But maybe he got away with it because his boss is a friend of the strata’s chairman.
- This topic was modified 2 years ago by .
-
Replies
-
Firstly I understand NCAT awards costs in exceptional circumstances.
In all other courts, costs are awarded without exception on application of the winning party. So firstly you will need to establish to NCAT thst you have exceptional circumstances.
The awarding of costs is governed by some common law principle. I’m not sure of the act or guideline that regulates this.
Your requests for costs can include any reasonable and agreed conditions.
Finally costs usually cover costs of court costs. From my knowledge, expenses for mediation are excluded as it’s usually expected parties engage in mediation before going to court. It’s when you start the court process that costs rack up.
And costs does not include every cent you spent. And if you are self represented, you can’t recover the cost of your time.
Firstly I understand NCAT awards costs in exceptional circumstances.
I think you misunderstand. This is not about “costs” awarded by NCAT, it’s about expenses incurred by the owners corp in pursuit of a case that they have lost. The principle behind Section 104 of the Act is to ensure that owners don’t have to contribute towards the expenses incurred in a losing case taken against them, or a winning case taken by them which the owners corp defends in vain.
You’re right that in NSW NCAT only awards costs in exceptional circumstances. However the law has already established that owners who win cases against their owners corps don’t have to pay any of the expense accrued by the owners corp in running the case.
Since they would be doing that if the expenses were simply paid out of the Admin Fund, Section 104 says thay have to be paid by a special levy which excludes the winning owner.
Let’s say your strata manager has charged you $5k for running a case against a legitimate claim by an owner, and that strata manager has hired a lawyer who’s charged $10k for their services.
If the owners corp loses, the law says they have to cover the $15k expenses by a special levy that, by implication, excludes the winning owner.
Some strata lawyers I have spoken to weren’t even aware of this until recently. Now that it’s out there, it may make strata committees think twice before taking frivolous NCAT action against owners with whom they disagree, if they have to explain to the other owners why they suddenly have raised a special levy to pay for a failed case.
In this specific case, the strata manager and committee have effectively conceded that they can’t charge the owner for the expenses but are now trying to nickel and dime it by only excusing him from paying some, not all of the expenses.
This is what section 104 of the Act says:
104 Restrictions on payment of expenses incurred in Tribunal proceedings(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
(2) An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.
(3) In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.
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.
- This reply was modified 1 year, 8 months ago by .
A transparent scheme would openly discuss with and disclose to all owners these changes well before the meeting. Surely its behaviour demonstrates bad faith by the strata committee.
Does it? I subscribe to the view that you should never ascribe to malice anything that can just as easily be explained by stupidity
Otherwise your questions are pretty granular and are therefore less likely to be addressed by elements of the Act
(1) Must a OC or SC inform owners before a meeting of the reasoning and justification behind revising the contract?
This is effectively a new contract (regardless of whether it’s a revision of an old one or not). They should answer quastions at the meeting as to why they have decided to go down this road.
(2) Can the strata manager take instructions (to have a general meeting) from a committee member who has sold out of the scheme? If so, what sections of the Act can I rely on?
This is such a specific and illogical occurrence that it would never have been envisaged in the writing of the Act, so the answers are “no” and “nowhere”.
(3) Must a strata manager or SC inform the owners in a timely manner if any a member of the strata committee has sold his lot or resigned from the Strata Committee? If so, what sections of the Act can I rely on?
It’s more likely to be the other way round – that the committee informs the manager and the other owners that someone is no longer a member. There is no part of the Act that includes that specific requirement (that I’m aware of).
Also, since being an owner is not a prerequisite of membership of the committee, it depends how the member was nominated. If they nominated themselves and then sell, they might fall foul of section 35 on eligibility:
35 Vacation of office of elected member of strata committee
(1) An elected member of a strata committee vacates office as a member:
(a) if the person was eligible to be a member at the time of election and the person ceases to be so eligible (other than because the person is an unfinancial owner)…But it’s not as simple as it should be.
(4) If I wish to put my NCAT case to all owners ahead of the NCAT hearing, must the agent provide me with contact details of all owners or can she withhold these details from me?
The contact addresses and email addresses are part of the strata records which the strata manager must make available for perusal and copying on request and payment of the standard fee. This is not “provision” – just access. The standard excuses of privacy, for instance for not revealing email addresses, are total BS and just a smokescreen. If they have email addresses, even if it’s just for sending out notices, then they are part of the record and should be revealed.
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.
- You must be logged in to reply to this topic.