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  • #8285
    Anonymous

      I contend our Executive Committee hasn’t been maintaining our Common Property for three years or more. I can muster considerable evidence of this without much trouble.

      I have been informed by the NSW Office of Fair Trading that I have to have to have ‘mediation’ before asking for an Order from an Adjudicator. Is this so, please? (I’ve heard their advice isn’t always to be trusted.)

      Our Executive Committee often SAY in agendas they are going to do stuff, putting it in agendas to DISCUSS, then then precisely NOTHING happens. I imagine at ‘mediation’ this would also occur; they’d say we’re planning to do this and that but not get round to it. (The strata’s bank balance is excellent.)

      Do I REALLY need to ask for mediation, $76 of my own money, or can I put a submission together and spend the same on asking for an adjudication?

    Viewing 7 replies - 1 through 7 (of 7 total)
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    • #16035
      Anonymous

        Heeeellllpppp please!

        #16036
        Jimmy-T
        Keymaster

          Weird! I wrote a reply to the previous posting and it disappeared into the ether.

          OK, here goes again. 

          Mediation is an obligatory part of the Fair Trading/CTTT process and everyone has to go through it apart from in a handful of circumstances, of which this is not one. It’s the law and you don’t get past square one without it.

          Even though mediation is mandatory, attendance at it is not, neither do participants actually have to say anything.  Why that should be the case is a mystery but that’s how they roll. 

          If your EC or strata manager does turn up and does promise to do stuff, tell them you want specific measures, with a timetable of work in writing as a binding agreement – not some verbal or vague flim-flam they can retreat from later. Anything short of that, you don’t accept.

          The initial adjudication after the mediation is done on paper – you don’t get to speak to your case and neither does the other side – and this is where your evidence comes in. 

          Every scrap of every document you can produce is worth taking, but remember that the Adjudicator will be more interested in what the building needs –  repair and maintenance are covered by the Act  –  rather than claims of broken promises which are just politics.

          So you need to show that a) there is work that needs to be done; b) the property is being damaged by the work not being done; c) the owners have been told it would be done; d) the building has the money to do it.

          If you can supply expert assessments that the work is necessary, so much the better.

          What you want is a timetable that covers issuing and acceptance of tenders and when the work will be started and you should probably state this in your initial application. 

          A vague request to the CTTT to tell the EC to do their job isn’t going to get you anywhere.   A request for a binding work schedule is something that the adjudicator will (hopefully) see as reasonable and practicable.

          If there are other owners unhappy about what’s going on, ask them to chip in to help pay the $76 application fee (and it’s a one-off fee to start the whole process – it’s not specifically for a mediation).

          However, I wonder if you went to the EC and asked them up front to deliver the timetable as described above, if they wouldn’t prefer to do that than have the time and considerable expense of being dragged to the CTTT.

          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.
          #16037
          Anonymous

            Thank you boss! Very helpful!

            #16039
            struggler
            Flatchatter

              Yes. Great advice. Am in the same situation as Juan. A committee who says they are going to do things. Even sometimes getting quotes but not actually carrying out the work! Useless telling them what else needs attention. Will give this a go. Fingers crossed.

              #16042
              struggler
              Flatchatter

                Just rang and spoke to fair trading. They said that attendance is compulsory at mediation! Not that I hope matters here go that far. Am hoping if I indicate that I have been talking to fair trading and about taking them to mediation with be enough for them to stand up and take action on all matters. Fair trading also said that you can’t take the executive committee to mediation, only the owners corporation. Though as my EC’s members are not familiar with the act in any way,shape or form, I may be able to really get their attention by saying I intend to take them. If they haven’t read the act, let alone the bylaws, or arranged any work in the complex in years, I don’t see them hitting the books anytime soon.

                #16043
                Jimmy-T
                Keymaster


                  @struggler
                  said:
                  Just rang and spoke to fair trading. They said that attendance is compulsory at mediation!

                  It is … in theory.  But the penalties for non-attendance are …? A fine?  Nope.  You automatically lose the case? Not even that.

                  [Having just read the posting by Scotlandx (above) I am happy to admit I was wrong – mediation is compulsory but attendance isn’t. Not that it makes much difference to the price of milk, but I’d rather get my confessions in early – JT] 

                  I know cases where the plaintiff has sent his lawyer to mediation to sit and repeat the  words “My client has given me no instructions on areas in which to compromise”. Is that attendance? technically yes, but not in any real sense.

                  However, I do think it shows that you have acted in good faith if you turn up at the meeting and show willing to compromise.  And it doesn’t look too good if you have driven the case and you don’t turn up yourself (in which case I think the Member would probably dismiss the action).

                  By the way, nothing said at the mediation is permissible as evidence at the adjudication, if it goes to one.  Mediation is a great idea and it can work but it falls down when one or other parties refuse to play the game.

                  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.
                  #16044
                  scotlandx
                  Strataguru

                    The mediation step is compulsory (although you can ask the Tribunal to allow you to skip that step) but attendance is not – the advice given by Fair Trading is not correct.  If someone applies for mediation and you are the other party you can decline to attend, in which case the person who applied can then take the next step of going to the Tribunal.

                    We were recently the subject of an application for mediation.  The letter specifically states that you can decline to attend.  That is the nature of mediation – you can hardly force someone to mediate, at least not at that level.  Of course if you decline, then it doesn’t look that good.

                    Yes anything that occurs at the mediation is confidential, all the people attending have to sign an agreement to that effect.

                    In terms of who you take action against, no you can’t take action against the EC, the other party is the Owners Corporation.  As the EC represents the OC, it is essentially the same thing anyway.

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