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  • #11629
    newlsie
    Flatchatter

      Where to next?  The OC caused leaks into my unit when they did concrete cancer work on the unit above in 2011.  They tried to fix the leaks for many years unsuccessfully.  In 2017 NCAT brought down orders.  The OC tried harder.  Either it hasn’t rained much or the band aid they put on the job has fallen off.  The leaks are back!!  NCAT told me to call Fair Trading.  Fair Trading told me to call NCAT.  NCAT then told me to call Law Access who cannot help.  The SC are useless and push back whenever I email them about a problem.  Short of going back to my lawyer does anyone have any suggestions?  Should I go to the press?  Many people have suggested a compulsory SM but I don’t think that is the solution.  Thanks in advance.

    Viewing 15 replies - 1 through 15 (of 20 total)
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    • #29354
      Jimmy-T
      Keymaster

        Start proceedings at Fair Trading seeking mediation leading to a binding agreement to start work within a specified time frame.

        If the committee refuses, start proceedings at NCAT seeking orders and costs under Section 232 (extract below) which says that he Tribunal  can make an order to settle a complaint or dispute about the operation, administration or management of a strata scheme, and/or failure to exercise, a function conferred or imposed by the Act or the by-laws of a strata scheme.

        Failure to maintain and repair common property is right in this Section’s gunsights.

        232 ORDERS TO SETTLE DISPUTES OR RECTIFY COMPLAINTS

         

        (1) Orders relating to complaints and disputes
        The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following:
        (a) the operation, administration or management of a strata scheme under this Act,
        (b) an agreement authorised or required to be entered into under this Act,
        (c) an agreement appointing a strata managing agent or a building manager,
        (d) an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,
        (e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,
        (f) an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.

        (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.

        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.
        #29363
        newlsie
        Flatchatter
        Chat-starter

          thanks heaps 🙂

          #30909
          newlsie
          Flatchatter
          Chat-starter

            Good morning Jimmy,  Further to this post and the leaks coming into my home I think I have found a loop hole in the law.  To recap;

            * The OC caused the leaks into my home in 2011.  The SC have no idea and are not the least bit helpful.

            * I have NCAT orders brought down in January 2017 to fix the leaks immediately.  The SC have not complied.

            * Fair Trading won’t touch it because I have NCAT orders.

            * NCAT say they cannot force the work to be done.  I can spend $5k with my lawyer and the OC will get fined however the Government keeps the money.  That does not get my leaks fixed because the SC don’t care.

            * Where to from here.  I would be happy to discuss this with the media.

            Can you please help,

            Newlsie

            #30913
            Andy
            Flatchatter

              I can’t believe the EC hasn’t done anything all this time. They’re in for a royal spanking by NCAT.  Are other people affected by water leaks in the building? What has been done about those? 

              #30919
              newlsie
              Flatchatter
              Chat-starter

                Thanks Andy,

                Yes, there are plenty of leaks in the building that are not being attended to.  My leaks were actually caused by the OC.   I think there is a flaw in the law.  NCAT can only spank and fine.  In a civil court if you do not comply you can be sent to jail.  There is no strata jail and all NCAT can do is issue paper.  I want my leaks fixed, now. Any ideas how I can achieve this after 8 years?  

                #30926
                Jimmy-T
                Keymaster

                  Apparently these days NCAT can and do award costs and penalties against recalcitrant owners and OCs, especially those whove treated the Tribunal’s orders with contempt. Has to be worth another roll of the dice.

                  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.
                  #30928
                  newlsie
                  Flatchatter
                  Chat-starter

                    Thanks Jimmy,  

                    I’ll ask my lawyer. It just goes on and on and I pay a share of the wasted strata money however that will not stop my leaks.  I want my home to stop getting wet.  The water is not catchable as it comes in drip by drip over an area of approx. 2 meters.  They paid for the carpet they ruined so what costs can I claim – the costs to get the original order? 

                    How can they fix the anxiety I get when I see clouds, the sense of anger when I see the unit owner above me who won’t let them in, the disgust I feel for the SC.   

                    I just want a dry home to live in!  Most normal people would think that would be a reasonable request after 8 years. 

                    #30929
                    Silly Cow
                    Flatchatter

                      Are there no enforcement remedies for breach of NCAT orders contained in their legislation?  Sounds like you need the SC replaced with an NCAT appointed manager asap.

                      #30932
                      Sir Humphrey
                      Strataguru

                        @Silly Cow said:
                        Are there no enforcement remedies for breach of NCAT orders contained in their legislation?

                        I don’t know about the NCAT. In the ACT, the ACAT can make orders but does not have the power to enforce those orders. Nonetheless, failure to comply with an order is an offence. 

                        Where I live, we had an owner who failed to comply with an ACAT order that she must remove an unapproved structure from her unit. In order to have the order enforced, we had to go to the Magistrates Court for an ‘enforcement order’. The owner attempted to use the magistrates court to re-argue her case that she should not be required to remove the structure. The Court was very clear that the matter had been examined by the Tribunal and it would not entertain anything other that determining how the owner would comply with the Tribunal’s order. At the Tribunal, we (members of the OC’s executive committee) had anticipated that if we received the orders we were seeking, the owner might not comply with the order and we asked the Tribunal how they might then be enforced. The Tribunal helpfully set out the enforcement procedure in its written Decision and Reasons document. Essentially, we needed to seek an enforcement order from the magistrates court pursuant to a particular magistrates court rule. The Court gave us the order we sought and the owner then complied. We did not apply for an order that the owner pay the fine for failure to comply with Tribunal order. We just wanted the unapproved structure removed with the least fuss and ill-will. 

                        #30933
                        newlsie
                        Flatchatter
                        Chat-starter

                          No, all NCAT can do is issue paper.  That’s it! 

                          The owner of the unit above me is a real smooth talker.  At one stage he suggested that a gutter be put in my home to catch the water and funnel it outside!  The slab is defective and honeycombed.  They know this.

                          I have no faith that a compulsory SM will have any more luck that the current clowns. 

                          Shouldn’t have to be this hard and shouldn’t take years and years.  I have absolutely no faith in the Strata system.

                          And BTW I know of others who are also in despair over leaks that are not being addressed 

                          #30938
                          Sir Humphrey
                          Strataguru

                            @newlsie said:
                            No, all NCAT can do is issue paper.  That’s it!…   

                            Nonetheless, that paper will contain very specific orders. Only a very foolish person would fail to comply with the orders of a Tribunal. It is a bit of bother getting a compliance order from the Court but the Court takes a very dim view of people who don’t comply with orders. 

                            #30941
                            Andy
                            Flatchatter

                              8 years is extraordinary. You say they were caused by the OC when doing concrete cancer work. I’m assuming a pipe was damaged during the work and not fixed and has been leaking all this time. What did the company doing the concrete cancer say about this? Obviously they have an obligation to repair damage they caused. Is it a section of pipe going into your unit or the unit upstairs which is  damaged?  

                              #30945
                              newlsie
                              Flatchatter
                              Chat-starter

                                Hi Andy,  The people doing the concrete cancer work poured concrete that was too dry and created a honeycombed affect that allowed the water to wiggle its way into my home.  The Structural Engineer who was supervising the job at the time told them to dig it out and re-pour. They accepted full responsibility and were going to fix it then the Chairperson ticked them off and they walked away.  That was 8 years ago.  Some band aids have been suggested and applied to no avail but no one is brave enough to ruffle the feathers of the owner upstairs and do the job properly.

                                I am putting this in front of NCAT however why make a ruling that you can’t enforce.  I just want the tradies to come in for a few days and fix it.

                                cheers,  Newlsie

                                #30947
                                Andy
                                Flatchatter

                                  I’d like to help, indeed I even have people I can ask but I’m not sure I understand the relationship with poured concrete and a broken pipe. Even if the concrete is fixed the pipe (or a gutter) is still leaking and the water will eventually find it’s way through. What is the excuse of the EC for doing nothing about the pipe or gutter? Like you said any repairs will be a bandaid if the leak itself is not fixed.

                                  #30948
                                  newlsie
                                  Flatchatter
                                  Chat-starter

                                    Thanks Andy, 

                                    There is no pipe involved.  There is no gutter – I am on the 5th floor.  The honeycombed concrete needs to be replaced in the unit above and then the area sealed off. This is what the tradies say must happen.

                                    The owner of the unit above me is the problem and will not let the SC into his unit to do the repairs.  Except for the past year he was on the committee so it was easy for him to get them to do nothing. Now that he is not on the committee he is saying my leaks are ‘alleged’ which is not true and in fact they are worse than before.  I have hundreds of photos.

                                    What can NCAT do – put out another piece of paper?  It has cost me thousands of dollars to get an order and it will cost me more to get another piece of paper.

                                    I don’t think I am the only person who is in a situation like this and frustrated because section 106 work is not being done to their homes.  

                                    Thanks for listening.  I would like to talk to you.  How can we facilitate this?

                                    Newlsie

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