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Hi everyone
I’m new to posting but I will do my best to keep to the rules and keep it to the point. I really hope you can help.In a nutshell ;
I purchased a unit in 2014 in NSW (Inner west)
Prior to my buying there the balconies were modernised, and new tiles + balustrades put on at a cost of about 400K. Not quite a year later, tiles started falling off – 2015 – remember that date.
Strata company suggested lawyers, lawyers said yep, you’ll get your money off the builder for sure, about 80K spent on lawyers fees and endless reports, and in May 2021, the very confident lawyers who insisted we would win our money back decided we could not win if we took the builder to court after all, and we mediated, and got paid out less than half of what they had paid for the balconies to be done in the first place.I wish that was the end of the story, but it’s not.
Bring in the new legislation for buildings and suddenly our repairs to the crummy work the original builder did blow out to 2.5 million dollars. It originally cost about 400K
Our building insurance has skyrocketed, we are fast spending the money we did manage to get from the builder on insurance, and we have a committee that while it means well, simply does not know what it is doing and refuses to spend money on anything else that needs doing in the building because (somewhat understandably) they are panicked about how we are going to afford to do the repairs on the balconies – which of course now urgently need to be done because it will be 10 years next year they have been in the state they are in and our insurance reflects this.Committee does not have regular meetings, does not have proper minutes kept for anything, the same people are always on the committee and do nothing and the same people on the committee who are managing these issues are failing to get anything done. 30 owners in the block and majority of them don’t want to think about putting up the levies to start getting prepared to repair the place, and the committee is incapable of making and following up votes and decisions.
Before I go further – yes – a few of the owners (myself included) have tried consistently over the almost ten years, including getting onto the committee ourselves, talking to and lobbying other owners, trying to raise the standard of communicating meetings to owners, and the importance of their involvement… but it appears that because the levies are so low, most people are happy to put their heads in the sand and just pretend it will all go away. Rarely would we get even ten owners to an AGM, most people seem to think that because the building is old and solid, they don’t really need to worry about anything else. I lobbied to have the levies raised about 4 years ago and could not get people to agree to more than the tiniest increase. We have very little in our sinking fund and would have to take out a massive strata loan to cover the costs of the building. It turns out we cannot even borrow the full amount we need, so levies would have to be hiked to an unbelievable amount to make it happen.
Meanwhile, we have other serious maintenance issues going unaddressed, a strata company with high fees, and total inaction on the state of the building. The manager does his best but he cannot force the committee to do their job.
I should add just to finish the picture that the committee does not enforce any regular rules for the block either – people park on common property, in visitors parking, often committee members themselves. There is a general feeling the committee is secretive (it’s not terribly communicative that is for sure) and as someone who has been on the committee in the past I can attest they don’t ever want owners told anything, and a sense they don’t want owners at meetings either. They did have one lady on the committee who has been fighting to open it up but I can see they have worn her down as well.
So, now I have painted that picture, what chance do I have if I take this to NCAT and try to get a strata manager put into place? I am worried if I go and fail, I will have to live here with a very unpleasant environment.
What do I need to do to be successful? Do I need other owners to come with me? What kind of evidence is acceptable? If I could sell and walk away I would have already, but with the building in the state it is in any buyer would expect me to take a haircut.
This is causing unbelievable stress and I believe we have a good case for saying both the committee and the strata management company are not capable of dealing with the situation – after ten years it is ridiculous we find ourselves in this situation. The committee is now back to the drawing board having rejected the 2.5 million dollar repair quote, and are now spending money on new lawyers (admittedly better than the previous ones) and finding a new design practitioner. Meanwhile the building insurance is sitting at about 20K a quarter.
Fun times. Looking forward to your responses.
- This topic was modified 1 year, 1 month ago by .
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You might consider getting the corporate roll from your property strata manager which by law you are entitled to receive (some states require you pay a small fee) – some committees will fight that but push back as you are entitled to seek it without question. That gives you contact info for others which you might then write to or call to see if they also have issues and are prepared to buy into it all with you. If the numbers are not there, I’d just line up your issues and start shooting one by one in the regular process and then go higher and to adjudication. If the numbers are there and you can get enough (20% of lot owners) you can force a EGM to get all this stuff aired, and have some costed/actionable motions to have voted on – which your committee are then obliged to do, and start seeking some more control, or at least let the committee who volunteered to do your work know that their ways need change. It’s all a bit of a long, stressful mess but if the issues are there nothing will happen if you don’t start to push back. Good uck!
I am sorry for your woes.
I would have to give this matter a very good deal of thought to decide what I, a layman, would do in your stead. But as an owner who has been involved in a few strata schemes including a decade stint on the strata committee of a large scheme, I offer my insights for you to add to your decision making process.
You raise many issues: did the strata manager and/or lawyer mislead you? Was the committee or is the committee incompetent? Is it out of its depth? Is it breaching its legal requirement to maintain common property (s.106 SSM Act)? You should argue that its behaviour demonstrates it is at the very least, dysfunctional.
Recently I complained to Fair Trading about a strata manager misleading me and soon enough he quit. I suppose he didn’t like to be the focus of an investigation. NSW FT did not (and does not) reveal what actions if any it took against the strata mgr nor did it (or does it) list managers who where the focus of an investigation and then quit their management roles subsequent to an investigation or if they did not quit, were turfed out by the OC. Not a transparent system is it?
Separate to complaining about the strata mgr, I took the OC to NCAT seeking amongst other things, a compulsory manager.
Both of the above actions took MONTHS of research, documentation and paperwork. And cost me money in filing fees, printing, travel and obtaining advice.
So what did I learn that could assist you? Broadly speaking there are four tasks for you to perform:FOCUS ON STRATA MGR – You could complain to about the strata manager’s behaviour ie referring the owners to a lawyer, which didn’t help you and in fact cost you and other owners. For this go to the NSW Fair Trading website and lodge an online complaint about a “property professional” in this case a strata mgr. NSW FT will reach out to you to confirm the facts as you present them and then to the strata mgr for comment on your allegations. Before reaching out to the strata mgr, NSW FT will decide if the strata mgr’s actions are worthy of investigation and only then will seek answers to questions you submit in your complaint which should focus on how the strata mgr did not abide by the requirements of the Property and Stock Agents Act and Property and Stock Agents Regulation. Requirements include his duties, such as being honest;
FOCUS ON OC’s (previous) LAWYER – You mention the lawyer did a 180 degree change on the likelihood of success. I am not legally trained but to me one question that arises is whether the lawyer misrepresented the chance of success to owners? Have a look at a NSW gov’t website where complaints can be lodged against lawyers https://www.olsc.nsw.gov.au/Pages/lsc_complaint/olsc_making_complaint.aspx
There may be other websites where you can complain against such lawyers, as a layman, I am not sure.FOCUS (also) ON OC – If you seek anything for the OC to do (eg building works) or seek a change in how it operates eg wanting the OC to surrender its existing management agent, before scooting to NCAT you must attempt mediation. You can apply for this also on the NSW FT website. As others have often written on this website, it doesn’t matter a jot if you and the OC actually mediate (as they may choose not to attend or set conditions for their attendance). All NCAT wants to hear is that a date for mediation was set and hence attempted.
At NCAT you’ll most likely – as I was going to – face the OC’s lawyer who will run rings around lay folk. Having the facts in your favour is in my experience insufficient to win. Also it’s reasonable to assume the OC will either use its insurance cover to pay for a lawyer or will seek owners agree to dipping into the strata scheme’s bank a/c to hire a lawyer to defend your allegations. Either way, the OC will no doubt have more resources available to it than you would. Oh, and say you do hire a lawyer costing you one arm and two legs. Say you win. There is absolutely no guaranty that NCAT will order that your costs in full or in part will be paid for by the losing side ie the OC; and
CONSIDER HIRING A LAWYER – either to represent you at NCAT alone, or you and others (once you convince others to join you). Alternatively, at a general meeting of the owners (ie outside the NCAT process), you could try to persuade the OC to hire a lawyer to undo the wrongs of the past. Either way, only approach a lawyer specialising in strata law.
There is absolutely no guaranty that NCAT will order that your costs in full or in part will be paid for by the losing side ie the OC; and
But at leas if you win, Section 104 means you don’t have to contribute to the strata scheme’s costs and expenses accrued in defending the action.
104 Restrictions on payment of expenses incurred in Tribunal proceedings(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
(2) An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.
(3) In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.
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, what you wrote about s. 104 is true in theory.
But not as practiced, at least in an earlier case of mine. In March 2022 I obtained orders from NCAT in my favour against the OC. Guess what? The so-and-sos on the SC refused to abide by s. 104 and charged me part of the cost of the OC’s expenses at NCAT.
At a general meeting they insisted they were in the right to invoice me. They went as far as to say they had legal advice supporting their position, but were unable to say which legal scholar green lighted their decision to invoice me.
Of course I then could have applied for mediation on that issue; filed papers with NCAT for a return appearance; pay yet another NCAT fee and hope that NCAT dresses down the SC for breaching the SSM Act.
But I did not do that on that issue alone. I added that issue to the many I had which I withdrew recently, see earlier post.
Stopping SC members thumbing their noses at NCAT must surely be another part of the urgent reforms to strata regulations in NSW.
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