Recovery of Costs by law

Whoopi wrote:

A few years back I was trying to fight the passing of a Recovery of Costs bylaw and would you believe no one listened to me. Since then a tribunal has made a finding on this bylaw at another strata plan deeming it invalid.

Can you supply a reference to the case where the by-law was bounced?  That would not only help your case with your committee – especially the Member’s reasons for rejecting the by-law – but will be handy for future discussions here on the Forum.

The proposed bylaw looks like it was written by a bush lawyer.

”jointly a severally” this implies thst the former owner and the new owner are responsible for any lot charges. The law says that once a property is sold, the new owner is responsible for lot charges, including anything outstanding.

Your conveyancer would ascertain what charges are outstanding and make adjustments to the sale price at time of sale , and pay any outstanding charges.

Your conveyancer will ask the OC for a reconciliation of any outstanding charges at time of sale. The figure provided by the OC is final. If they make a mistake that’s their problem.

Also the OC can’t levy penalties on owners, save costs of recovery of costs to recover outstanding levies.

Youcan point out all these defects with the bylaw to the OC. If it passes, should the OC try to enforce this bylaw, I would think that the tribunal would throw it out as certain aspects of it are unlawful

I am not a lawyer, but I’m not sure if this Appeals Board decision actually covers the issue.  The question of costs in this case relates to breaches of by-laws and the fact that the by-law deemed them to be levies (over which there are strict rules and limitations).

In your case (I think) the by-law proposes that owners indemnify the OC against costs accrued during the pursuit of Tribunal action against them.

I am more persuaded by the NCAT guide to the award of costs, which basically retains the power of the Tribunal to decide if costs should be awarded, to whom and by how much.

If anyone wants to get into the weeds on this, I think it’s also worth reading this document which addresses the legal and moral bases for awarding costs in civil matters.

While it starts with the principle of “loser pays” this is far from rigid and allows, for instance, for plaintiffs to run apparently valid cases which they then lose, and for both parties to then pay their own costs (one of the founding principles of NCAT).

You chairman needs to nip this in the bud, in case it leads to another lengthy and expensive Tribunal  case, which is purportedly what they are trying to avoid.

Apart from all that, Kaindub is right in that there are process involved in the settlement of strata purchases which can involve the purchaser being made aware of any outstanding debts and taking on those debts while the amount is deducted from the purchase price.  In other words, whoever owed the debt in the first place still has to pay it, one way or another.

So that clause in the proposed by-law is entirely redundant and should be seen for what it is – an attempt to bully owners with the fear that it may become more difficult to sell their property.