Can th e OC ignore its duty to maintain and repair

In July 2016, I and my wife retired and moved to a new multi-storey apartment of 150 in Sydney South.  The owners corp and strata manager have since stubbornly and unreasonably denied our legal right to have the defects in our common property repaired in collusion with ingrained organisation culture of the neglect and slack customer services of strata managers causing a lot of undesirable stress in our retirement life.  I have tried a few attempts to rectify the injustice but the O/C and strata manager persist in their disdainful and oppressive manner.  I hope Jim and other contributors to Flatchat could provide me with some helpful advice on how to compel the O/C and the strata managers to fulfill their statutory duties under the NSW strata law and legislation.  Details of my case are appended.

HISTORY OF THE DISDAINFUL AND PATHETIC STRATA MISMANAGEMENT FROM JULY 2016 TO PRESENT

Our BUILDER/DEVELOPER is a medium size company operating in Sydney West.  Our building was completed in July, 2016 but overall the apartments construction work is poor as I find there were unforgivable defects in infrastructure inside my apartment due to poor workmanship and low quality equipment/fixture fittings. There are widespread construction defects in common property such as serious water penetration in carparking areas and corridors and soffit rust developing in many of apartment balcony ceilings within two years of completion.

Our STRATA MANAGER  AND THE BUILDING MANAGER were originally appointed by the BUILDER/DEVELOPER in 2016 and have been responsible as our fully delegated strata managing agents up to December, 2022 when they underwent some undisclosed internal changes in line with their opaque and out of touch undemocratic strata management style.

INTERWINED CONFLICT OF INTERESTS LEADING TO APATHETIC AND BLATANT DISREGARD OF NSW STRATA LEGISLATION DETRIMENTAL TO THE FINANCIAL INTEREST OF OWNERS AND RESIDENTS I.E. FAILURE TO MAINTAIN AND REPAIR COMMON PROPERTY, NON-RESPONSIVE, SLOPPY AND NEGLIGENT DAY-TO-DAY STRATA MISMANAGEMENT

The strata managing company (strata manager) and the building maintenance company (building manager) are ASSOCIATED COMPANIES with common stakeholders which is an undesirable relationship preventing the strata manager acting as an effective and independent overseer on the most important task  of ensuring all major and minor construction defects are identified and rectified quickly before the expiry date of warranty periods i.e. two year (minor defects) and six year (major defects).  Unfortunately, there has been an ingrained organisation work culture of slack and disdainful attitudes towards customer service of  strata managers without accountability and transparency to individual apartment owners.

FAILURE TO MAINTAIN AND REPAIR COMMON PROPERTY UNDER SECTIONS 106 AND 107

Intertwined conflict of interests amongst interested parties and successive dysfunctional strata committees since the inception from July 2016 have bred a slack, sloppy and negligent work culture in our successive strata managers/building managers causing neglect and lack of control over the identification and follow-ups of minor and major building construction defects and even daily maintenance and repair work.  As a consequence, massive amount of major and minor building defects remained unidentified, unreported and unrectified.  The strata manager, partial to the developer/builder, advised and negotiated a DEED OF VARIATION in June, 2022 to allow the developer/builder another two years beyond the 6 year warranty period which shows how slack the strata and building managers have been in doing such an important work.  In fact, the builder/developer were allowed to cherry pick some low cost minor defects to give an impression to owners that they had been attending to defects rectification works  but in fact intentionally leaving those high cost major construction defects in the last two years ending June, 2024 beyond the original warranty expiry date i.e. June, 2022.

PAST PROVEN TRACK RECORDS OF STRATA MISMANAGEMENT DUE TO SLACK AND SLOPPY APATHETIC AND DISDAINFUL WORK CULTURES OF STRATA AND BUILDING MANAGERS

Tolerance of over 30 illegally added bed rooms at one time in 2020 posing potential fire hazards to residents due to strata /building managers condoning and not taking PROMPT compliance action to stop them for over 2 years.
Rampant Illegal dumping in 2016-2020 – no intervention or compliance action on residents and non-residents reckless and massive illegal dumping of bulky household furniture and equipment, commercial and industrial waste in common property creating untidy and unhygienic living conditions to residents.
Intimidation/racial abuse on strata committee members 2021 by inept appointment of work contractor of unfit character by strata/building managers as our preferred strata contractor ignoring due process and charging hefty prices. Police report was filed because the contractor threatened a committee member with violence when the committee member tried to stop the misdeeds of the contractor.

The above illegal activities were stopped completely after I became a strata committee member in Nov. 2019 until Oct. 2021 when I was a lone voice to repeatedly alert the strata committee and compel the strata manager to take compliance action.

DYSFUNCTION OF STRATA COMMITTEES led and dominated by a long serving authoritative person who has been a member of both the strata committee and the building management committee from 2016 for over 7 years.

HISTORY OF MY CASE

SOFITT RUSTS IN BALCONY CEILING – PERSISTENT REFUSAL TO OUR REQUEST FOR REPAIRS WORK OUTSTANDNG OVER THREE YEARS (SINCE NOVEMBER, 2019)

In September 2019, I verbally informed the building manager to investigate and repair the increasing soffit rust developing in my balcony ceiling was ignored.

In November 2019 I sent emails notifying the strata management of the defects, including the strata committee, all seniors strata and building managers of the defects and demanding timely repairs and maintenance action but they all remained silent with no action at all.

Between November 2019 and June 2022, there have been changes of three strata managers.  Persistent and regular follow-up emails have been sent but they continued to ignore without any actual action and at that time only made blank promises from time to time as a ploy to further delay the repairs work.

In June 2022, I sent an ultimatum letter to the 3rd newly appointed strata manager who then engaged a building consultant who confirmed they need to be repaired and maintained.  Then 4 quotes were obtained for approval of O/C for the due process for the repair.  After that, the strata manager did not advise on progress.

At end of November 2022, I sent a complaint letter to the chief executive of the strata managing company for his special attention on the long term disdainful and inherent poor strata mismanagement of his successive strata mangers for the past seven years.  But he never replied or acknowledged my complaint.  I was disgusted at his hypocrisy as he has been an important member of the strata community self-regulating body and always trying to impress the strata community as a role model lecturing about good strata management principles.

In December, 2022, the strata manager suddenly emailed me that no repair work would be done because the O/C now required the prior approval of a resolution of owners at the 2022 AGM which has been long overdue and there is till no news when it will be held.

MEDIATION via the Department of Office Fair Trading has just been done on 6/3/23 with no resolution.  At the mediation, the strata manager spurned our complaint by saying that our repairs work was just cosmetic and aesthetic and unimportant and ranks at the bottom of O/C priority list.  I asked when it could be repaired.  The strata manager answered in vague uncertain terms it might be in far future.

According to my understanding

MY LEGAL BASE

This is a clear cut simple case of O/C not fulfilling its statutory duties to maintaining common property in a timely manner.  To deny owners legal rights is illegal under the strata law.

The strata manager used the fallacy that the soffit rust is unimportant cosmetic and superficial repairs work.  According to my friend who is a qualified building surveyor, soffit rust may deteriorate quickly and become concrete cancer over time which may be very costly to rectify.  Then it may affect the building structure and pose danger to residents.  Furthermore, from the owners’ standpoint, such apparent defects will discourage prospective buyers and make it more difficult to sell.  It will also convey a negative impression on the poor quality and efficiency of strata maintenance of a relatively young building.

COLLUSION AND ABUSE OF POWER BY OF THE STRATA COMMITTEES AND STRATA MANAGEMENT COMPANY

According to my past 40 years strata living experience, the strata committee normally can approve ordinary repairs work without the fuss of an AGM resolution approval.

As there is no known extraordinary circumstances, the cost is estimated around $15000 and no substantial in consideration of large number of owners, prima facie evidence of general strata mismanagement and neglect for over 3 years,  is this an apparent case of gross negligence and abuse of power by the dominating strata committee member and the strata manager since they have not observed and satisfied the three tenets of proper functioning of the strata committee and the strata manager as specified in strata law and strata manager i.e. due diligence, due care and acting in good faith (are O/C and strata manager acting it bad faith in raising the hurdle by demanding an onerous AGM ordinary approval in the last moment when every groundwork for rectification has been completed i.e. on site inspection and investigations done and 4 contractors quotes ready for submission to complet the due process)

I now intend to do the following:

apply for an order from NCAT to compel the O/C to repair and maintain the common property
apply for an order to remove the dysfunction strata manager for 7 years of slack and negligent mismanagement in total disregard of the common interests of owners (Do I have to go through mediation first?)
apply for an order to remove the dominating strata committee member for his over 3 years neglect of O/C statutory responsibility and abuse of power to deprive owners of their statutory legal rights. (Do I have to go through mediation first?)

Do you reckon I might have a reasonable chance of success ?

I have emailed and correspondence photo evidence substantiating the past seven years of illegal strata incidents incidents which were recorded in the building manager’s maintenance diary.

I am a retiree and have limited time and financial resources to fight against a large strata management company with vast financial resources and legal backings.  However, I strongly feel this is the worst strata management company I have ever seen in my life time as they have blatantly inflicted gross injustic upon me.  I have past experience in dealing with various sizes and style of strata managers in the last 40 years.  In even small boutique strata managing companies the managers always will respond and take corrective action when a complaint is made though sometimes a bit late due to staff shortage which is understandable.  This is the first time in my life to encounter such a large managing company with such an ingrained apathetic, disdainful and irresponsible management style in their strata managfers which should be a disgrace to the strata management industry.

All invaluable helpful and constructive suggestions and past experience from friends and contributors to Flatchat are most welcomed and greatly appreciated.

Yours Sincerely

Fight4Justice

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