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  • #61097
    Whoopi
    Flatchatter

      Good Morning Flat Chatters

      NSW.

      Jimmy wrote a story  a while back about the Recovery of Costs bylaw and my adventures in strata. Well they continue to this day.

      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.  Some poor owner had to cough up at the tribunal to fight it. Well , our strata manager forgot to register this bylaw and they have  re issued it  again on the Agenda in our AGM.  So I am up for a fight again. The last paragraph of the  bylaw concerns me and I would  love the  Flat chatters  opinions on this section of the bylaw.

       Sale of Lot

      If a person becomes an owner of a lot at a time when, under this by-law, a former owner  is liable to pay any expenses, interest or recovery costs to us, the person who becomes owner is jointly and severally liable with the former owner to pay those amounts to us.

      To me this sounds suss?? Could I have some advice on this one. As it is not covered by the Strata Schemes act I need some advice on it.

      Thank you , My AGM is this week so  I would be  thrilled for any advice.

      Whoopi

    Viewing 7 replies - 1 through 7 (of 7 total)
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    • #61112
      Jimmy-T
      Keymaster

        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 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.
        #61114
        Jimmy-T
        Keymaster

          If you can provide documentation showing that a costs by-law has already been rejected by the Tribunal, you might send a letter to the chairman, copied to the strata manager and the rest for the committee along these lines:

          I call on the chair to rule motion xx out of order under the powers granted to them by Section 19 of Schedule 1 of the Strata Schemes Management Act which says:

          “The chairperson at a meeting may rule a motion out of order if … the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable.”

          Attempts to pre-assign costs have already been proved to be invalid by NCAT which reserves the right to apportion costs, and then only under very specific circumstances.

          As a result, this by-law would have  no “force or effect” and to pass  it would be a waste of owners corporation funds in registering the by-law then having to defend it at the Tribunal where it would inevitably be challenged and in all likelihood rescinded.

          The chairman and strata manager should advise the owners accordingly or explain, on the record,  why they are prepared to allow this waste of time and money to proceed.

          If the Chairman feels unable to remove the by-law, please add this submission to the record of this meeting when the by-law is debated.

          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.
          #61148
          kaindub
          Flatchatter

            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

            #61177
            Whoopi
            Flatchatter
            Chat-starter

              Hi Flat chatters

              Here is the case below.

              Thank you for your input so far brilliant.

              File numbers 2021/00262738  and 2021/00262728

              The Owners – SP No 91684 v Liu; The Owners – SP No 90189 v Liu [2022] NSWCATAP 1Hearing dates:22 November 2021Date of orders:5 January 2022Decision date:05 January 2022

              https://www.caselaw.nsw.gov.au/decision/17e22127a8663b4137b25d5c

              I suspect this bylaw is a bullying bylaw which only serves  law firms and  Strata Managers and committees who wish to oppress the rights of  lot owners . This bylaw plunges the owners into fear of speaking up about  an issue for fear of  heavy expenses being imposed upon them.

              #61179
              Jimmy-T
              Keymaster

                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.

                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.
                #61215
                Whoopi
                Flatchatter
                Chat-starter

                  Thanks Flat chatters

                  I was successful in arguing against this bylaw in the AGM, the OC intend on rewriting it according to the Strata Manager so I may be back if they return with another  by law that is oppressive.

                  Many thanks for all of this invaluable information. My saga does continue after 7 years and multiple  tribunal appearances.

                  Whoopi

                  #61216
                  Whoopi
                  Flatchatter
                  Chat-starter

                    Hi Kaindub

                    This was very helpful, I am grateful to you, it was used in the meeting and helped to defeat this by law.

                     

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