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Topic
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Hi,
Wondering if anyone has any suggestions about this situation below? I am out of ideas and options.
I am a Secretary of a small, 3-unit NSW self-managed strata, and all Strata in NSW are required to hold Building Insurance with any insurance company (eg: AAMI, CHU, etc).
We recently had an accident where a random car in public, hit and damaged our fence.
This fence is the common property between our Strata and an Adjoining Strata.
We got details of the car driver responsible and also his Comprehensive Car Insurance details. We contacted his insurance (GIO) and they accept full responsibility.
We also contacted the Adjoining Strata and they refused to lodge a claim to their own Strata Insurance
I decided (stupidly in hindsight) to expedite repair of the fence via our own Strata Insurance company (AAMI). I reckoned that they would be more
experienced at this kind of event and would deal with it in weeks rather than months.In hindsight, this was a mistake.
Our Strata AAMI insurance came back and said they will only pay 50% to repair the damage because “It is a common property between us and our neighbour”,
even though 1) the car drivers insurance (GIO) already admitted all fault and 2) we are the innocent party in this situation.My question is:
How can I recover 100% of the cost of the repair of the fence?
What should I do now?
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Replies
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Send them the bill for the rest of the fence repair and, when they refuse to pay, either take them to the small claims court or start proceedings at Fair Trading, then NCAT under section 233 (below). Tell them you will also be claiming all costs if they force you to do that.
This is just laziness on their part and there’s no reason you and your neighbours should have to pay because they can’t be bothered to claim.
233 Order for settlement of dispute between strata schemes
(1) The Tribunal may, on application by an owners corporation for a strata scheme, make an order to settle a dispute between that strata scheme and another strata scheme if:
(a) the strata schemes are contiguous or the dispute relates to a lease of land, or other arrangement relating to property, of one of the schemes, and
(b) the matter in dispute is not regulated by or under any other Act.
(2) In this section, a strata scheme is contiguous with another strata scheme even if it is divided by, or separated from the other scheme by, a natural feature (such as a watercourse), a railway, a road, a public reserve or a drainage reserve.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
NCAT is not the correct forum for this issue.
Fences are covered by the dividing fences act, so according to 233(1)(b) that’s the forum. I think it goes to the local court. There is a whole website about solving these disputes.
There is a whole website about solving these disputes.
You’re right, of course, which is why I suggested going to court as a first option. Re the website to which you refer, a link would have been nice.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
I would have done the same as you to get the work done promptly and assuming that reimbursement would be forthcoming one way or another.
It seems to me that the two owners corporations should have each claimed against their own insurance (who might be the same insurer since there are not many doing strata insurance). Those insurers could then have recouped their costs from the driver or the driver’s insurance since the driver admitted liability.
However, ultimately, it should be the driver’s insurance paying for the whole thing. So, if the neighbours are uncooperative and your OC is out of pocket, then I would be first asking the driver’s insurer to pay up and, if that doesn’t work, going to the Tribunal for an order that the driver or their insurer reimburses your OC for the full cost of the fence.
I agree with Sir Humphrey when he writes that both OCs should claim against their insurer (who presumably will hound the car driver’s insurer).
That said, the following should help you (based on a detailed discussion I had a couple of years ago with a very capable Chairwoman of a strata scheme):
(a) The law that governs this is the Dividing Fences Act
(b) Step 1 (after neighbourly discussions get you nowhere) involves serving a FENCING NOTICE on your neighbourGo to
https://www.lawaccess.nsw.gov.au
In the SEARCH BOX type
Fencing notice step by step guideThis will reveal in detail what you need to do.
(c) Step 2 (if/when Step 1 fails) involves a FENCING ORDER
At the above website, in the SEARCH BOX type
Applying for a fencing orderAn application for a FENCING ORDER can be made at NCAT or the local court.
The SEARCH results will offer details about both options (via NCAT and local court)
The above websites are very informative. Good luck to you.
In the interest of self education, it cannot hurt you to ask your insurer if, assuming you make a claim (regardless of what your neighbour does), will you (our insurer) pursue the car driver’s insurer for this loss?
* Note I tried to include the full, direct, URLs for both fencing notice and order, but I was unsuccessful in
submitting it online.
Truleconcerned,
the information you have provided applies before a fence is replaced.
if you read further on the website, the notice to fence can’t be retrospective.
Whilst the dividing fences act is the governing law, it will require a visit to the courts to sort this out as the othe strata has already declined to chip in.
This is an unusual situation and could be easily solved if the other strata had agreed to chip in.