Schemes must raise losing case expenses by special levy

Truleconcerned

Read the NCAT website as it speaks about costs orders.( don’t remember what the url is)

You can’t ask for costs long after the case is closed

The time to ask for costs is either in your initial pleadings, or straight after the judgement is handed down.
When asking for a costs order, you don’t need to quote the act. The courts know what it is.

When asking for costs, you need to b3 prepared. You need to understand what costs can be asked. You can’t ask for payment of your time preparing the case or payment because you missed work. You can ask for lawyers costs, even if they did not represent you in court.

You can’t get costs at mediation UNLESS the other party agrees to pay ( unlikely) as part of the settlement agreement. However if a settlement is not reached and it goes to court, your costs of attending/ preparing for the mediation can be considered.

Costs are purely at the discretion of the judge, and it has been known for a party to win a case and yet get no costs awarded, or to have to pay the other party.

Just Asking wrote:

An owners corporation that is unsuccessful in an action brought against it in NCAT… cannot use the administrative or capital works funds to pay its costs and expenses. It may raise a special levy, but cannot levy a successful owner for a share (s104 SSMA 2015).

That seemes to be true. Let’s look at what Section 104 says:

(1)  An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.

(2)  An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.

This is interesting in that it doesn’t define “costs” as being sums awarded by a tribunal to one side or another.

So it seems to be saying, and I hope someone will correct me if I’m wrong, that if an owners corp gets into a stoush with an owner and loses at NCAT, it has to raise a special levy to cover its costs for the case and the resident must be excluded from the special levy.

If that’s the case, it’s an elegant deterrent against strata committees routinely running residents through the tribunal treadmill to impose their will, right reason or none.

• This reply was modified 2 years, 7 months ago by .

To finally nail this one down, here is a response from our sponsors Bannerman Lawyers.

If an Owners Corporation is unsuccessful in proceedings, there are different costs consequences that may apply depending on whether proceedings are commenced in the NCAT or the Courts.

Costs can be categorised into two main types:

2. The Owners Corporation’s costs of the proceedings, including legal costs and expert costs; and
3. The Owners Corporation’s costs of complying with any substantive orders made by the NCAT or the Court including orders to pay damages.

Costs in the NCAT

If the Owners Corporation is unsuccessful in NCAT proceedings against a lot owner, it must raise a special levy, excluding the successful owner from liability to contribute, to fund the Owners Corporation’s costs of the proceedings. This is automatic and does not require an order of the Tribunal, pursuant to Section 104 of the Strata Schemes Management Act 2015 (“SSMA”), as extracted below:

104         Restrictions on payment of expenses incurred in Tribunal proceedings

1. An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.

2.  An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.

3. In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.

Hobbitville wrote:

What is the situation if the positions are reversed. i.e. an owner takes NCAT action against the OC.

Basically the same.  The relevant section of the Act says it pertains to actions taken by and gaints the owners or strata scheme.

Does there have to be a special levy (from which the initiating owner is excused) raised to cover all of the costs, including any lot, as well as common property engineering inspections & physical repairs, as well as all lawyers fees incurred from the start of the complaint / failure of mediation?

The Act says the strata scheme “cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund …” but can raise a special levt from which the prevailing owner must be excluded.

I’m not a lawyer but I would say that means any expenses incurred specifically in the pursuit of this case and used during the proceedings.  Others may disagree, but I think the meter starts running on this when the strata committee or owners corp decides to proceed with or defend an action at the Tribunal.

It would not (IMHO) think anything and everything related to the dispute could be counted, including surveys and inspections before the case commences, and repairs made after it had been concluded.

• This reply was modified 2 years, 7 months ago by .

Here’s my non-legal opinion.  The Act says:

(1)  An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.

You were successful.  The Act doesn’t say anything about being partially successful.  I would email the strata manager and ask them if they really want to go round again and charge another set of costs to the owners.

If he doesn’t amend the motion,  I would go to the meeting and ask the owners if they really want the strata manager to play double or quits with their money, given that you didn’t actually lose on the other issues, you withdrew them as a courtesy.

One of those “Do ya feel lucky, punk?” moments for the manager.