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Hi all,
My tenants filed an application with NCAT to sever the lease I have with them given the noise, dust, deteriorating living conditions and risk to their health imposed on them by the renovations from the owner next door.
NCAT upheld their claims and allowed them to vacate 6 months before their lease expired without paying the agreed break fee or any rent due until the end of the lease because NCAT said the noise and dust from a neighbour’s renovations made my premises “uninhabitable”.
Naturally I was not happy, to put it mildly. As my tenants and I agreed on the amount from the bond that should be surrendered by the tenants for damage they caused, NCAT coaxed us to finalise the matter “by consent”.
Which we did.
Given NCAT did not hold me responsible for the impact on my tenants’ living conditions, I asked the NCAT Member what I can do about my expected loss of rent (until I find a replacement tenant. He suggested I could take the neighbour who renovated, to the local court claiming the renovations were carried out in a manner that affected the tenants’ right to quiet enjoyment, which is why he deemed the premises “uninhabitable”. In short, the neighbour (who never lived in his unit, but bought, renovated and flipped the property) committed a nuisance and I should seek damages for the loss of rent which I would sustain until a new tenant is found and starts paying me rent.
Well, to the Local Court I went, given I lost $17k while the premises were empty, as it took many months to find a suitable tenant.
I represented myself and I lost. (It was not economically justified to hire a lawyer given the quotes received and the quantum involved). The Court found the neighbour was reasonable in his conduct and hence no nuisance was committed.
1) Must the local court decisions be consistent with NCAT’s decisions? It seems in this case they are polar opposites.
2) Can I appeal? What are my chances?
Note: as “consent orders” were issued by NCAT, there was no mention of the “uninhabitable” status of my premises as the reason the tenants could vacate and hence I had no evidence to pony up at the Local Court. FYI, soon after the matter was heard by NCAT I asked for chapter and verse of what transpired at the hearing and was told that when consent orders are handed down, what I am after is not documented for then parties. But if I want proof of what went down at NCAT, I need to buy a recording of the (long) proceedings, requiring me to buy several CDs and then pay for a transcription service to produce a hard copy.
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I have been told that judges feel insulted when plaintiffs or defendants represent themselves – it’s like you have no respect for their profession or the system and they tend to rule accordingly, regardless of the merits of the case.
Hire a lawyer and get them to go for costs, would be my advice.
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.
I’m sorry to say that your horse has bolted.
As you have taken your case to a court already and had a a ruling, you’ll need to find some compelling ground to have it reviewed in a higher court.
Be mindful that taking your case to an appeal does not allow you to enter new evidence.
This is the pitfall of self representing. (I’m not suggesting that self representation is a bad idea, but not having a lawyer guide you risks falling into the traps of the legal system. Again to save any argument, I believe the legal system we have is equitable, though to the lay person somewhat baffling).
For others reading this, ALWAYS consider mediation rather than court. In mediation no one assumes blame, and if you can come to an agreement, the amount you get in your pocket can be greater than that awarded in a court less your costs. Most lawyers will help you with mediation at a a low cost.
Court is also risky and you may not get the result you want.
As this member has found, sometimes the cost of legal action exceeds your losses. It’s a call whether you want to be right ( and spend lots of money proving it) or sometimes just accepting defeat and cutting one’s losses.
I have been told that judges feel insulted when plaintiffs or defendants represent themselves – it’s like you have no respect for their profession or the system and they tend to rule accordingly, regardless of the merits of the case.
I’ve read that judges tend to think that self representation at court level can both waste the court’s time and be a major disadvantage to the self representing party.
It’s because self representing parties tend to have both poor legal knowledge and a poor understanding of how the legal system works. It puts them at a major disadvantage that can end up frustrating everyone involved.
At Tribunals on the other hand, self representation is compulsory or encouraged. It’s somewhat ionic then that OC/BCs, being entities, always need representation, even at Tribunals. It need not be professional representation, but that’s the usual choice.
What do you think a solicitor would have charged for a small claims (under $20k) matter at the LC?
Sorry, my comment was what I had read about getting professional representation in courts in general.
I think you probably have a case, although I note that OCs can give written permission to make noise eg for renovations. Hopefully within reasonable hours only!
The short answer to that is no. Damage to a lot does not encompass loss of rent due to the lot being uninhabitable. “Damage to a lot or to common property” means physical damage, which the owner would then have to make good, or pay to make good.
Note in terms of enforcing that by-law (or any by-law) it has to be enforced by the OC, an individual owner can’t take action to enforce the by-law. The only thing they can do is seek to have the OC enforce it. But that by-law won’t help you here.
I agree with Jimmy, you should get a lawyer, or just move on. I think you do have a case, but the issues need sound legal advice.
TrulEConcerned wrote:
I heard from Fair Trading that the OC can enforce by laws if it chooses, but has legal requirement to do so. Is that true?
Did you mean “has no legal requirement”? (I assume so, otherwise the statement is contradictory) If so, once again, Fair Trading is giving out highly dubious advice.
I had a chat with former Fair Trading Minister Victor Dominello about this a couple of years ago and he was quite clear on this. “Read what I said on the second reading of the Bill (the 2015 strata Act)” The owners corporation has a responsibility to enforce its by-laws.”
I think the key phrase in the Second Reading is this:
Members of the strata committee will now have a statutory duty to act for the benefit of all owners and to exercise due care and diligence in their role.
This view and consequences for not doing so are enshrined in Section 232 (2) of the Act:
Orders to settle disputes or rectify complaints
(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
So, yes, the committee can decide not to enforce your by-laws in a specific case, either by refusing or failing to do so within a certain time, but then you can go to NCAT and ask for orders compelling them to take action.
If Fair Trading told you otherwise, they are wrong (yet again).
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.
1. Jimmy is correct, Fair Trading is wrong. You can take action to make the Committee enforce a by-law. In this case however that is irrelevant.
2. There are a lot of lawyers, contact the Law Society (I assume you are in NSW) and ask them to refer to you one.
I am in QLD. In early 2019 my neighbour attempted to remove a small tree on common property without discussion. It he small tree has been there since we moved in 4 years ago.eI asked the contractor to stop the work and only trim the tree to within 50cm of the unit owner’s property. On 19 Dec 2019 I returned from 8 weeks overseas to find box (flying minute) dated 19 Nov 2019With the resolution that “approval be given to the owner of the lot to trim the tree at no cost to Body Corporate. The main tree branches have been drastically trimmed and we have not only lost a beutiful native shrub we have lost our privacy from the main road and our shelter from road polution. I believe the owner acted inappropriately and unethically in that she used her position on the committee to gain personal advantage and used unfair tactics to influence another committee member. Can I ask for compensation to install a privacy screen?
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