- This topic has 15 replies, 4 voices, and was last updated 1 year, 1 month ago by .
-
Topic
-
Good day all,
I have a mediation session next week (me V the OC) and was just told that the OC has hired a solicitor to represent it.
Can I object to this waste of money? Especially when the Chair of 30 years for reasons not shared with me refuses to represent the OC.
If I cannot object or am unsuccessful at objecting, assuming I win the forthcoming NCAT case (which will amongst other items, include the matter under mediation), can I include the OC’s mediation costs (in addition to its NCAT costs) when I claim to be excluded from participating in the OC’s expenses (via s. 104).
-
Replies
-
I think its unusual for an OC to hire a lawyer to represent them. Perhaps the lawyer is hired to provide legal opinion to the OC and it will be represented by a committee member or the strata manager.
Remember that mediation is NOT about determining who is legally correct. Its a process for two parties to come to a mutually acceptable resolution. If the OC wants to lawyer up, then they would be better to save their time and money; refuse mediation and go directly to NCAT
At mediation, the lawyer cant make agreements on behalf of the OC unless instructed at the mediation by either the strata manager or a committee member.
You may also want to look at S103 of the Act. Hiring of lawyers needs approval of the OC, unless its an emergency or the bill will be less than $10000.
You can find out all this stuff by asking for the lawyers cost agreement with the OC (lawyers must provide this at the start of the engagement in order to be paid) Its NOT a legally priviledged document and as an owner you can access it as its a record of the OC.
Hang on. No SC. That means no strata committee?
So how is the strata manager getting instructions?
The strata manager can be delegated the functions of the chairman, secretary and treasurer but thst does not extend to making decisions of the OC.
Has a general meeting been held to confirm the lawyer.? To decline mediation at NCAT?
I think you have a strata manager that’s overstepping their authority.If you ever get to NCAT on this issue, I’d raise with the tribunal whether the strata manager or the lawyer isvauthorised to represent the OC.
You may find you are fighting no one and get a judgement in your favour because the other side did not turn up.
Under the usual SCA contract the powers/duties of the Strata Committee are delegated to the Strata Managing Agent.
As a “corporate entity” the owners corporation requires human representation to participate before a tribunal. Often the strata managing agent acts on behalf of the owners corporation. It is necessary to obtain the permission of the tribunal for a solicitor to represent a party, and where the other party has given their prior consent the tribunal member will usually automatically grant the request.
If TrulEConcerned declined to consent then the solicitor would have to apply to the the tribunal member for permission to represent the owners corporation. Asking for consent beforehand is both a courtesy and time saving at the hearing.
On reflection, I dont think thst giving all functions to the strata manager is Carter blanche.
The act allows the functions of the chair, secretary and treasurer to be assigned to the strata manager. But the act is very specific of the functions of these positions and no way does it say any function has decision making power for the OC.
The act allows the appointment by the court of a compulsory strata manager. Under thst delegation , the strata manager has full functional control as well as full decision making control. Note thst this is court determined.
I believe that if there is no committee, then the decisions of the OC must be made at a general meeting. ( the intent of the committee by the legislators is so thst a small group can make decisions for the whole group).
So in the posters case, ANY decision must be put to all owners at a general meeting. The decisions can’t be made by the strata manager as the act only allows this where a compulsory strata manager is appointed.
The Act allows the OC to delegate certain powers to the committee and/or the strata manager. But it also specifies certain issues that may only be determined at a general meeting. And it says a committee MUST be formed but says in the absence of one, there is nothing to prevent a strata manager from exercising delegated powers.
29 Owners corporation to appoint strata committee(1) An owners corporation must appoint a strata committee of the owners corporation in accordance with this Act.
(2) The owners corporation may appoint the strata committee before the first annual general meeting of the owners corporation.
(3) The members of the strata committee must be elected at the first annual general meeting of the owners corporation whether or not members were appointed before that meeting.
(4) If there is no strata committee of an owners corporation, the strata scheme must be administered by the owners corporation, but nothing in this subsection prevents a strata managing agent appointed under this Act from exercising any functions conferred on the agent.
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.
The owners corporation is still required to have a strata committee and office bearers regardless of delegations made to the strata managing agent. It may be necessary to convene appropriate meetings to elect a committee and office bearers in the case of TrulEConcerned’s scheme.
Also, the strata committee and office bearers can exercise their duties and powers notwithstanding the delegations to a strata managing agent.
The owners corporation is still required to have a strata committee and office bearers regardless of delegations made to the strata managing agent. It may be necessary to convene appropriate meetings to elect a committee and office bearers in the case of TrulEConcerned’s scheme.
In NSW you can have a committee of One, and one person can hold all the offices. And this is an interesting wrinkle … it might only apply to the initial period and transition from it, but the law says if meetings aren’t held, the Tribunal can order one to be held at the request of an owner.
20 Tribunal may appoint person to hold first AGM and other meetings(1) The Tribunal may, on application by an owners corporation or an owner or mortgagee of a lot in a strata scheme, order a person to convene and hold a meeting of the owners corporation within the time specified in the order if a meeting has not been convened and held in accordance with this Act.
(2) The person who is to convene and hold the meeting is to be a person nominated by the applicant, or appointed by the Tribunal, who has consented to the nomination or appointment.
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 wrote (in regular text below) with my response in italics:
Please use the quote function (see above). I really don’t want or expect our readers to read great slabs of italics. I have fixed it for you in the previous post. It’s really quite simple … but I don’t have the time or inclination to re-edit posts that don’t follow the style of the Forum.
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.
TrulEConcerned, is it too late to get your case back on track? Tribunal members are usually as helpful as they can possibly be to unrepresented parties. Just by hiring a lawyer a bad owners corporation does not magically become a winner.
The fees have been paid to NCAT to run the case, and you have done the work of putting your evidence together so may as well keep going. The tribunal member will grant adjournments if there is something in your paperwork which needs to be straightened out. The evidence of both parties will be given its due weight irrespective of who has presented it. Depending on the merits of your case the solicitor for the owners corporation may even decline to cross examine.
You cannot know what will happen unless you go. You can approach a solicitor for a fee proposal, it could be less than you think. It all depends on how much the matter in question impacts your life. You are very correct, one person cannot police the world of strata.
Tribunal members are usually as helpful as they can possibly be to unrepresented parties. Just by hiring a lawyer a bad owners corporation does not magically become a winner.
The Tribunal was intended to be lawyer-free but this has been allowed to slide as Members felt they were wasting too much time explaining basic strata law to self-representing owners.
Yet one more argument for a fast-track system where a panel of experts – a strata lawyer, strata manager and independent committee member – could give litigants an immediate sense of whether their case was likely to fly or probably doomed to fail.
All most people want in these cases is:
- To be heard
- A definitive answer from an independent and knowledgeable source that they can trust.
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, 2 months ago by .
- You must be logged in to reply to this topic.