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Dispute resolution in NSW strata schemes is about to get a lot easier. Whether it will be better remains to be seen.
Under the new strata laws, due to begin in December, the preliminary paper adjudication at the Tribunal (NCAT) will be scrapped and all disputes will go straight to a hearing.
Over the years the preliminary NCAT adjudication has become more of an exercise in form filling than justice or even common sense. It had all the flaws inherent in a system that requires everyone to be fully informed, organized, literate and aware of their rights and responsibilities.
For the ACT’s simpler way of moving from
mediation to adjudication go HEREYou could put together compelling proof of a by-law breach, with every scrap of evidence a proper court of law could require, but be rejected because you didn’t include one piece of paper such as copy of the agenda of the meeting at which it was decided to issue a complaint.
Meanwhile the subject of the complaint might be just as frustrated when they didn’t get a chance to explain the circumstances that had created the problem. In fact, that applied to both sides when it was only discovered after a decision had been issued, that one document that could have been provided wasn’t there.
Too often, the losing side – and there would always be one – would feel cheated and appeal to a hearing in front of real people with everyone given a chance to put their point of view.
But soon NCAT will cut to the chase. You will go straight to a hearing and all you will have to worry about is whether the Member has a clue about apartment living. Good luck with that.
The other change in the law is that strata schemes can organise their own internal mediations, a move that has the potential to stop issues getting out of hand. It must be better to resolve a dispute in-house, where everybody has at least a basic grasp of the issues and personalities involved, without having to schlep to a soulless office in Parramatta.
It’s all entirely voluntary and Community Justice Centres already provide free mediation services so it’s a viable option.
And if one party has no intention of taking part in a mediation –the ‘defendant’ can’t be compelled to attend – at least you can tick the mandatory “mediation attempted” box on the NCAT form and move to a hearing.
It’s hard to see any downside to these changes. And, hey, maybe we are finally edging closer to that happy day when NCAT has a dedicated strata section.
There’s more on this – and a look at the ACT’s much simpler and highly practical dispute resolution system – on the Flat Chat 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.
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This is an extract from a previous post on a different topic by one of our Stratagurus, Peter C. It explains how, in the ACT, mediation and adjudication can be part of the same process – getting to dispute resolution quickly and efficiently – JimmyT
It sounds like you (collectively NSW, not anyone personally!) need to make NCAT operate a bit more like ACAT, the ACT equivalent. Here anyone can make an application for a small fee.
Consideration of the matter starts with an informal Directions Hearing. This is like a mediation session except that it is with an ACAT member. If the parties reach some arrangement that is not illegal and both agree they can live with it, the ACAT will make ‘consent orders’ which are then binding.
The ACAT member does not at this stage make any findings or conclusions or impose any solution on the parties. The ACAT member will try to act just as a mediator rather than a judge.
If it is clear that a mutually agreed option is unlikely to be reached the matter will be set down for a hearing. Parties are warned that the Tribunal will then impose a solution which might not make either party happy.
If the parties agree that further discussion might reach a solution that could result in consent orders they will be scheduled to return. In some cases the consent orders could be to do something else and report back.
For example, a unit owner was unhappy with an EC decision to not remove a tree from common property near his unit. At the directions hearing the EC agreed that if the OC directed the EC to remove the tree then it was obliged to do so.
The EC agreed that it would call a general meeting at which the owner could put a motion to remove the tree. The owner put his case in a background paper distributed with the meeting notice. The EC also wrote a background paper for why it did not agree to remove the tree. A majority of owners voted to retain the tree.
When we returned to the Tribunal for a second directions hearing, the ACAT member asked the owner if the meeting had taken place, what was the outcome, and did he accept that decision by the owners. He said he did not accept the outcome.
The matter was then set down for a hearing. At the hearing the EC presented the evidence that two arborist had agreed that the tree was in good condition and a majority of owners wanted to keep it. The tribunal dismissed the application for orders that it be removed.
In another example our EC initiated an ACAT matter when an owner refused to remove a fence that enclosed an area of common property. No solution was reached in the directions hearing/mediation but we agreed to negotiate further and a date was set to return to the Tribunal.
Out of the Tribunal, the owner agreed to remove part of the fence that was entirely on common property. The EC agreed that another part could remain except that this fence was actually on a boundary between an adjacent unit and common property. The owner of that unit was happy for that leg of the fence to remain and to assume responsibility for it. We reported back to the Tribunal that we had a solution and received ‘consent orders’ for that solution. The unit owner complied with the Tribunal orders to remove the bit that had to go and all were happy.
In yet another example, it was quickly clear at the directions hearing that no consent orders were possible and mediation would get nowhere with a unit owner with an unapproved alteration. Instead the matter was set down for a hearing. We had the hearing, and the EC got the orders it sought that the unit owner must remove the unapproved alteration by a certain date.
The owner did not comply with the Tribunal order and now we need to go back, this time to the magistrates court, for enforcement orders of the Tribunal decision.
This will not involve a reexamination of the facts or merits of the matter. Instead the EC will be seeking orders from the Magistrates Court for someone else to be appointed to do what the unit owner was ordered to do but failed to do.
I think the ACAT does a good job of giving mediation or other solutions a go when it could work, coupled with the power to give the consent orders that make an agreed outcome stick. However, if mediation is clearly going nowhere, they can quickly and pragmatically move on to a hearing and an imposed solution.
BTW. Something would make it easier in the ACT is geography. Hardly anybody in the ACT is more than a half hour drive from the Tribunal so it is not hard for matters to start there. In NSW, I assume there are strata developments from which it would take travelling all day and an overnight stay in Sydney to get to the NCAT’s rooms so a required mediation step that might be undertaken locally might be much less bother for many. Can NCAT exist when required in court buildings in (say) Wagga or Dubbo?
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