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  • #8361
    HappyNow
    Flatchatter

      There was a slapping incident at our complex 18months ago. An AVO was issued and a hearing took place whereupon the EC member guilty of the ‘slap’ signed an undertaking to the court to cease this kind of behaviour.  The matter was a private matter between two owners (one being an EC member). The court stated each party were to pay their own costs.  It came to light recently that the EC member (supported by the EC) claimed their legal fees through Owners Corporation Liability Insurance.  The Owners were not aware of this until one Owner found a letter from the insurance company in the strata managers communication folder on which the EC member had stated to the strata manager they were going to manage the reply to this letter. A misrepresentation was made to the Insurance company by the EC member and monies paid to her.  The Insurance company have since been sent the court transcript showing it to be a private matter.  Now a former EC member has requested an EGM be called and one of the matters is a motion to allow the members of the Corporate Body to vote to signify that they are fully aware of the matter, that the insurance has been finalised and the Owners have no further interest in the claim.  In other words they are going to villify*  the wrongdoing.  There are only 2 or 3 of 21 units prepared to vote against this.  Is this legal?  Can they support an obvious wrong doing by an EC member?  What can the 2 owners not supporting do to prevent it? Yell

      *

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    • #16393
      excathedra
      Flatchatter

        Based on Macfadyen’s posting, this looks like fraud!  If the insurance company take notice of what has been sent to them and don’t take action, perhaps they deserve to be ripped off. 

        #16395
        Jimmy-T
        Keymaster


          @excathedra
          said:
          Based on Slapped‘s posting, this looks like fraud!  If the insurance company take notice of what has been sent to them and don’t take action, perhaps they deserve to be ripped off. 

          I f only it was a s simple as that. I think you might find that the premiums are affected by legal claims which means everyone is suffering as a consequence of this Strata Slap.  But I have to assume that the EC managed to persuade the insurer that while the incident was between two individuals, it had some element of EC/owner issues.

          However, if they lied, then it would be a frud and, before anyone asks, the individuals who perpetrated it would probably not be covered by their EC insurance.

          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.
          #16396
          FlatChatFan
          Flatchatter

            @Slapped said:
             The Insurance company have since been sent the court transcript showing it to be a private matter.  Now a former EC member has requested an EGM be called and one of the matters is a motion to allow the members of the Corporate Body to vote to signify that they are fully aware of the matter, that the insurance has been finalised and the Owners have no further interest in the claim.  In other words they are going to villify*  the wrongdoing.  There are only 2 or 3 of 21 units prepared to vote against this.  Is this legal?  Can they support an obvious wrong doing by an EC member?  What can the 2 owners not supporting do to prevent it? Yell

            *

            So what can be done?

            #16398
            Jimmy-T
            Keymaster


              @FlatChatFan
              said:

              So what can be done?

              Good question – and I would respond by asking what it is that Slapped wants.

              Does he or she want the Owners Corp to do the right thing, do they want them to do the best thing (not always the same) or do they want to punish the miscreant?

              If this were my strata, I would be asking, first of all that a letter be sent to the Insurance company asking if they were satisfied with the outcome, if they planned to take any further action and if this legal action had affected premiums?

              Depending on the response – any combination of no to the first one and yes to the second and third –  I would be asking the OC to agree not to support any insurance claim for the court costs and to support any claim by the insurance company against the individual concerned.

              Just because the Owners Corp agrees not to take action doesn’t mean the insurers won’t, so this agreement merely ties the Owners Corp to defend the indefensible and accept the consequences.

              However, all that is very airy-fairy and there is one action I would take as a matter of priority – and it’s a motion that could easily be added to the agenda of the EGM –  to declare the EC seat of the slapping member vacant (in other words, sack them).

              Any kind of violence is completely unacceptable in a strata plan and if the EC member has admitted they slapped another resident, that is all the reason anyone needs for sacking them from the EC.  This is a no-brainer, actually and if the slapper admitted in court that they did this, they should have been asked to resign from the EC as soon as they did.

              Getting back to the proposed motion, in any sensible and aware Owners Corp, the motion to endorse the alleged fraud would be bounced.  So what you really need to do is to make the other owners aware of what is going on and what their liabilities might be both collectively and individually.

              I would check the terms of the Strata Insurance very carefully for exclusions (and I’m pretty sure physical assaults would be one of them, if only by implication) and then send out a message to all the other owners explaining what their personal liabilities might be if they are found to have endorsed the perpetration of a fraud.

              It’s one of the ironies of strata living that majority of owners think “the strata” is some amorphous organisation that doesn’t really have any connection with them.  In fact we are all part of our Owners Corporation and our responsibilities for Owners Corp decisions (or lack of them) are absolute. 

              I can’t tell how far that would go if owners endorsed a genuine fraud – and I’m guessing neither can most owners.  But I’m pretty sure that if you put enough owners in enough doubt about what their liabilities might be if they buy into this alleged fraud, they might (and should) be worried enough to kill this motion stone dead.

              Meanwhile, I’m passing this on to our legal and insurance contacts to ask what they think.

              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.
              #16399
              scotlandx
              Strataguru

                An insurance contract is one of utmost good faith, i.e. both parties are under the obligation to make full disclosure to the other of any information that may be relevant.  From what Slapped has said, the EC member has made an illegitimate claim and made a number of misrepresentations, not least of all purporting to make a claim on behalf of the OC they knew to have no basis.

                In relation to the EC member’s actions, even if they had been conducting EC business, slapping someone is outside the ambit of anything they would be authorised to do.  You can be charged with assault for doing that.

                The EC is now asking the OC to ratify the claim (that’s the word you are looking for).

                What I would do is remind the owners voting that if they ratify what has occurred then they are party to the illegitimate claim/possible fraud, and as such in the event the insurance company seeks to get that money back (highly likely) then they may all be liable to the insurance company severally as being party to that misfeasance.  So if the EC member is unable to pay up, the insurance company will come after them. 

                Personally I think the circumstances are appalling, and I would probably contact the insurance company, but that is just me.  As for the EC member, if they are still on the EC, they shouldn’t be.  I would also be asking questions about corporate governance generally, as the other EC members were aware of and supported what the EC member was doing, and any advice the strata manager has given.

                #16401
                HappyNow
                Flatchatter
                Chat-starter

                  Thanks everyone.  Yes it is definitely fraud however she has never admitted her guilt to the EC.  After the court hearing, she returned to the complex and told them the AVO had been dropped.  She did not mention the AVO had been dropped because she had signed an undertaking to the court (and to me) so they didn’t evict her from the EC which is what I had requested be done. 

                  Instead I have had to fight every inch of the way to show that she was guilty by way of finally paying for a copy of the court transcript.  The insurance company told me the case was closed.  I am waiting to see what they say when they see the court transcript showing this was a private matter and costs must be met by the individuals 

                  I get the impression the insurance company is not interested as it is only about $1600.  I however know a principal is involve there and the EC condoning her behaviour only makes everything worse.  Our insurance premiums have gone up as a result of this claim and payout.  I am waiting for the insurance company to come back to me regarding their decision and if they do not overturn their decision and ask for their money (Owners corporation money) be returned then I will go to the Insurance Obmudsman. 

                  The EC are now looking at having an EGM and allow a motion to be voted which signifies that the Corporate Body (their words not mine) are fully aware that the matter of an insurance claim by EC member to the insurance company has been ‘finalised’ and they have no further interest in the claim.

                  As the members of the EC condoned the claim, this should not be allowed to happen though I don’t know how to stop it.  I want the insurance company to overturn THEIR decision to pay the EC member and for the money to be returned to the insurance company AND the guilty EC member be made to step down and never to be allowed to be re-elected to office again. 

                  The current EC should be embarrased by their actions.  I failed to mention that on Wednesday evening the 29th Aug, 2 senior policeman constables turned up on my doorstep to say the EC member is feeling harassed by me putting items on the bulletin board about this and they were asking if I were going to continue doing this and if so, the EC member would get an AVO out on me. 

                  They also told me in the course of their conversation to me that she had admitted to ‘putting her hands on me’.  I said my only avenue to have this heard was the Owners Corporatation Bulletin Board and I was using my freedom of speech to ensure other Owners knew of this issue.  My notices are a copy of the Court transcript (a publicly available document), my concerns regarding this matter and a copy of my letter to the insurance company requesting they re-open this claim. 

                  I think the police were mates of one of the EC members (an ex policeman himself) sent to intimidate and bully me into silence.  Not something I intend doing. If anything further goes to court, I can now call on the two police who came to see me to witness their comments to me regarding the EC members admission. I hope it wont have to go that far.

                  #16403
                  Jimmy-T
                  Keymaster

                    @Slapped said:

                    I get the impression the insurance company is not interested as it is only about $1600. 

                    The insurance company may have made the decision that it’s cheaper and easier to extract the money from the Owners Corp by way of premiums than it is to run a case against your neighbour.Not much you can do about that except getting the Owners Corp to refuse to pay – and it sounds like you have no support there.

                    If the Insurers won’t come to the party, your choices are to run with this yourself by taking it to the CTTT (on which grounds I really don’t know) or let it go and save yourself a lot of needless grief.

                    Speaking of needless grief, I notice you had used your real name as your username, despite my requests elsewhere that posters shouldn’t do that.  By identifying yourself, you are identifying your neighbours whom you have accused of some pretty serious stuff. I don’t have the time or money to defend other people’s defamation cases so I have gone in and changed it.

                    This is a general request, PLEASE folks, use a bit of sense when you are chosing a username. Using your own name is just asking for trouble that you might welcome but I really don’t need.

                    The Sofa of Anonymity is there to be hidden behind for a reason – please use it.

                    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.
                    #16404
                    HappyNow
                    Flatchatter
                    Chat-starter

                      Apologies.  Did not mean to use my own name.  Tried to keep this anonymous but as you type and it all runs away from you, you tend to forget.  I intend going to the Insurance Ombudsman if the insurance company does nothing. I will then decide if CTTT is required depending on the outcome.  Thank you for your input.

                      #16430
                      HappyNow
                      Flatchatter
                      Chat-starter

                        Update – obtained copy of Insurance Policy.  Yes, there are consequences for misrepresentation. Have notified Strata Manager of my concerns regarding the upcoming EGM and the ratification after the fact of the EC member & condoning of same by the EC in claiming legal fees on Owners Corporation Liability Insurance.  I can only hope at least one member of the EC will be the voice of reason and understand the legalities involved here if this is allowed to continue and the exposure to the OC as a whole for costs. The three of us who see the consequences are the youngest owners in this Over 55’s SEP5 Strata complex. We have tried our best to explain this to the other but there is none so blind as they who will not see. I have indicated to them that the Chairman (a JP) witnessed her hitting me a 2nd time to show him how hard she had hit me the first time and my partner was witness to that.  She had admitted to two constables last week that (her words) ‘she put her hands on me’, I have my sworn statement to the police and the court which provides a full account for the reason for seeking the AVO.  I have a signed undertaking to the court and myself by the EC member that she will cease such behaviour and on the bottom it states each person will pay their own costs. I have a court transcript with her solicitors opening statement to the magistrate stating this is a ‘private matter between X and Y’ and I have on file minutes of an EGM meeting which took place shortly after this incident which clearly shows this is a private matter between two owners and the EC cannot and will not get involved. I also have evidence of the EC member withholding documents from the correspondence file held by the Strata manager stating ‘she will deal with the matter’.   I dont know what else I can say. The Insurance company has been misrepresented and yet I feel like I am a voice in the wilderness as other owners befriend her as she cries that she is being victimised.  If anyone has and is being victimised in the matter it is me and the OC.  Anyway, I will continue to update the progress of this. I know there are more important things happening in the world but a wrong is a wrong and it must be righted as far as I am concerned or more serious corruption can occur.

                        #16431
                        HappyNow
                        Flatchatter
                        Chat-starter

                          Just one more thing – the Court Transcript shows the Magistrates instructions that the owners in this matter must pay their own costs.

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