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An increasingly attractive suggested method for dealing with… let’s call them “persistently critical” owners in a strata scheme has been to try to pas
[See the full post at: Small victory for litigious Victoria strata warrior]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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In this instance, shouldn’t the strata manager know what needs to be done to make the passing of costs directly to Mr Rogers ‘legal’.
Should they not be held accountable?
The practice of on-passing certain Strata Manager fees to lot owners has been done in VIC stratas for decades.
Eg the fee charged to the OC by an SM for issuing a breach notice has been on-passed to the lot that received the breach notice. It gets placed against the lot’s account. So it becomes type of pseudo fine against the lot. But it’s never been allowed to be done that way, so it’s always been done as a gambit: the lot owner has to either pay the fee or challenge it. Most pay.
The practice can even get approved by the OC at each AGM. I know some of my OCs do that. To some extent that gives the SM the green light to do it. But, as several VCAT cases have established, OC approval of the practice does not make it legal.
To make it legal before charging a lot owner, an OC had to first apply to VCAT for approval. VCAT more recently has more authority to grant that approval if it sees fit to do so.
Applying to VCAT is a process within itself, so many (most I’d say) OCs try the gambit method first. If a lot owner challenges the fees at VCAT, they might win or they might lose. The lot owners has to decide if it’s worth the challenge.
In the case in this thread, the OC withdrew the fees before the case was heard at VCAT. So we’ll never know if VCAT might have allowed some or part of them. But the OC involved for sure did not follow the correct process it needed to follow when it issued the fees.
So now we know. If proper process had been followed, they could and probably would have allowed the charges.
Yes, the proper process was not followed.
But in cases where the proper process was followed, there’s no guarantee that VCAT “probably would have allowed the charges”. Although VCAT “might well have”.
The OC still has to justify the charges. And there have been many cases where VCAT has reduced the OC’s claimed charges or denied them entirely.
To be fair, you didn’t have the benefit of reading the case findings
I read it. VCAT published it, as is their prerogative.
Any chance of a citation or link, please?
I’ll do that. I read all VCAT published OC cases and recall a few where OC charges claims against a lot have been reduced or refused by VCAT. However, recent changes to the OC Act (from December 2021) make it easier for VCAT to approve certain OC charges claims.
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