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Hi everyone, I am Secretary of a small Strata Committee in NSW.
We (the Owner’s Corporation) are curently trying to apply to NCAT for orders regarding an owner who has installed non-compliant hard flooring in their unit. We have sent them a Notice to Comply with a By-law but their response was unsatisfactory hence the progression to NCAT.
My question is; on the application form it says to state what orders we are seeking in accordance with the Strata Fact Sheet.
I have noted (using the fact sheet as a reference) that we are seeking orders under Section 232 of Strata Schemes Management Act 2015 – “Orders to resolve disputes and settle complaints regarding compliance with by-laws and causing a nuisance or hazard”.
I have also noted that we are seeking orders under Section 147 under the Strata Schemes Management Act 2015 – “Orders to impose monetary penalty for contravention of a by-law”.
The problem is, that we don’t actually want a monetary penalty, we want the owner to recitfy the flooring (at their cost) so it no longer causes a nuisance to the occupants below due to excessive noise transferral.
Is there another section in the Act we can refer to in the application which will apply to the correct orders, or does the “monetary penalty” apply in this instance?
We don’t want the application to be knocked back purely because we’ve noted the wrong section of the Act.
Thanks
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I can’t see why a monetary penalty would be appropriate. What you want is for the floor to be fixed. You want an order giving the owner a limited time (6 months, perhaps) to bring the flooring (other than laundry kitchen bathroom toilet) to a suitable standard. You could ask for AAAC 6-star which requires thick carpet on good underlay or settle for 5-star which is possible with vinyl if it has a decent acoustic layer underneath. Don’t be fobbed off by compliance with BCA – that’s not good enough. The order should require the owner to supply a certificate of compliance from a reputable acoustic consultant at his expense (think $1500).
That presumes you have suitable by-laws, perhaps:
An owner of a lot must ensure that all floor space within the lot is covered or otherwise treated to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot.
Also, you’d better ensure you have a written complaint from downstairs.
1. I have been to NCAT a few times (not all strata matters) and often my application and the parties I was up against prepared “amateur” applications. Never was an application knocked back by NCAT. NCAT assumes the parties are often lay folk and not QCs, so don’t despair that your application will be tossed back at you;
2. In my experience, some very recent, the menu of available orders that NCAT can hand down are those listed on the 11 page fact sheet.T here are no other possible orders that NCAT can hand down unilaterally or “by consent”.
3. In your application, when outlining your case, list ALL the orders and the relevant sections of the SSM Act. Some orders you can see directly relate to your issue and some orders may only touch on your issue (and may even do so in a manner that is not your preferred option eg s. 147);
4. You may at the hearing find that not all the orders you listed are relevant. If that’s the case, then as Americans say: “no biggie”. You will not be penalised by listing more orders you seek than you actually raise in a hearing;
5. As to your point on s. 147 (monetary penalty), you write that you want the owner to fix the issue and not penalise him financially. Well, that’s what you want. Whether in time you get that is another matter. By adding this order to your claim, in the event that you are successful at NCAT but the owner either refuses to comply with the order or hints that he allows you to fix the problem at his cost, this order will formalise the OC’s righr to do the works and make the owner pay the OC’s costs.
You may at the hearing find that not all the orders you listed are relevant. If that’s the case, then as Americans say: “no biggie”. You will not be penalised by listing more orders you seek than you actually raise in a hearing;
I am pretty sure that I have read in the past about Members rejecting cases because the plaintiffs appeared to be changing horses in mid-stream. It’s much better to go in with a clear objective of what you want and the best way to achieve that. And, yes, professional advice can only assist in that regard.
Don’t forget that while NCAT hearings are supposed to be at the parties’ own costs, the Tribunal can award costs if they feel either party has been deliberately obstructive.
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.
Jimmy wrote that
I am pretty sure that I have read in the past about Members rejecting cases because the plaintiffs appeared to be changing horses in mid-stream. It’s much better to go in with a clear objective of what you want…
I may have been unclear. I do not suggest to change strategy midstream. I am however suggesting that, as Jimmy opines, “to go in [to NCAT] with a clear objective” and that while you go to NCAT with a clear objective, you may be unsure which order is exactly the most appropriate one NCAT will want to refer to, so list all those orders that assist your position.
Just a thought, this is what the NCAT fact sheet says about applying for financial penalties:
[Applicants must] attach the Tribunal order that was contravened
• Evidence includes a statement of the contravention including dates and description of activities
• Note: Evidence must be in the form a statutory declaration, affidavit or expert report as appropriate, as the rules of evidence apply in penalty proceedings.To me, it sounds like getting a financial penalty imposed may be a higher bar to clear than seeking orders. So, if you don’t actually want a financial penalty, why burden yourself with going the extra distance and increasing that chances of failure on a technicality.
Again, seek professional advice, preferably from an experienced strata lawyer. I’m not sure that initially going for a by-law breach was the right tactic. Could have worked, but clearly didn’t.
A section 232 application covers a by-law breach in any case.
FYI, if you are seeking orders, you need to have at least attempted the mediation process first.
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.
Pamster
the section of the act you are looking for is 132
rectification of works by an owner
the section of the act you are looking for is 132 … rectification of works by an owner
I don’t think so. Section 132 applies when “work carried out by or for an owner or occupier on any part of the parcel of the scheme has caused damage to common property or another lot.”
Where is the damage to common property or another unit? Removing carpet to lay down timber flooring is a minor renovation as defined by Section 110 (3)(c) of the Act, not requiring a special resolution (presumably because it doesn’t change or damage common property or another lot).
On the previous question of running both the claim for a penalty for breach of a by-law as well as seeking orders, section 232 (3) says …
A person is not entitled—
(a) to commence other proceedings in connection with the settlement of a dispute or complaint the subject of a current application by the person for an order under this section, or
(b) to make an application for an order under this section if the person has commenced, and not discontinued, proceedings in connection with the settlement of a dispute or complaint the subject of the application.
That seems to be saying pick a lane and stick to it. Once again, I strongly recommend you get professional advice.
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.
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