- This topic has 18 replies, 5 voices, and was last updated 5 years, 2 months ago by .
-
Topic
-
Earlier this year, NCAT made an order to have a new lift installed in my building by a certain date. This did not happen. In other words, the order had not been complied with.
At a recent tribunal hearing to renew proceedings, the Tribunal member made no orders against the Owners Corporation and has now allowed another 2 months for the lift to be fully completed and certified.
That means, four months will have expired since the original order was made to have the lift fully completed.
Why on earth do we bother with NCAT? What a useless organisation it is. In addition, the member had a very poor knowledge of how strata works.
-
Replies
-
In the ACT, possibly similar in NSW, the next step would not be to go back to the Tribunal. Instead, you go to the Magistrates Court and apply for an Enforcement Order of the Tribunal’s order. The court is not interested to reexamine the facts of the matter; they have already been determined by the Tribunal. The magistrates court is only interested in asking a party if they have any excuse for failing to comply with the Tribunal’s order. In the absence of an excellent excuse, the Court will order the OC to comply with the Tribunal order. You, as the applicant, can ask the magistrate what the consequences would be if you get the enforcement order you are seeking and the OC again fails to comply with the orders. The magistrate will then very sternly explain to the OC’s representative(s) that failing to comply with a court order has more serious penalties than failing to comply with Tribunal orders and that they really do not want to have that sort of escalation.
Sir Humphrey’s advice above is pretty solid.
But since you are going back to NCAT anyway, you could ask for orders under Section 90 that when the costs of legal action are paid, that you are not obliged to pay any additional levies to cover their legal costs.
You could also ask for supplementary orders that the Owners Corp immediately raise a special levy to pay for the lift repairs.
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.
You can ask for one or all members of the committee to be removed under Section 238 of the Act but the Tribunal is unlikely to leave you without any form of management.
So, unless you have an alternative committee ready to go, the Tribunal is more likely to agree to an order under Section 237 of the Act, replacing the committee with a strata manager who will undertake all of the functions of the Owners Corp. That means that for one or probably two years you and your neighbours could have little or no input into the running of the building which will be done “by the book”.
As we often say, it’s one of those “careful what you wish for” outcomes as sometimes the cure feels worse than the original disease. But at least your lifts would work.
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.
My impression is that it goes over well at the Tribunal or Court to focus just on the outcome you need and bend over backwards to avoid looking vindictive. So, for example, you could ask for orders that the penalty for failing to comply with a Tribunal order be applied but what would that achieve? Some money from the OC would go into state general revenue. It is not necessary for the outcome you want, which is to have the various works performed promptly. Focus on that. Then, at the next AGM, when it is all done, you can argue that this committee should not be returned since it failed to comply with Tribunal orders and could have cost the OC further penalties.
He said he couldn’t at today’s hearing. Why not?
The Tribunal can only consider what is put in an application and notified to the other party. If you did not apply for orders that the SC be sacked and the SC were not given sufficient notice of that as the other party then procedural fairness demands that the Tribunal not consider that. You can’t just ask on the day ‘Oh and BTW, can we sack the SC as well?’
Even worse, he gave no time limit as to when all the remaining work (repairs to common property caused by the installation of a larger lift than the previous one) and repairing the lift door that has caused the lift to be broken down for the last week will be completed. A new lift!
I give up!While I understand your frustration, if a new lift has been installed that has broken down, isn’t that an installation/warranty issue? I’m not exactly sure what you expect the SC or the SM or NCAT to do under those circumstances? Surely a repair has been requested?
I think you’re being a wee bit harsh, Austman. This is a long-running saga of the willful neglect of a strata block by absentee owners whose only concern seems to have been to mimimise their levies at the great cost (in terms of liveability) to resident owners and tenants.
What the SC and SM could have done was to make sure the new lift was fit for purpose before it was installed (by not going for the cheapest opting, for instance?).
What NCAT could have done was kicked the recalcitrant office-bearers off the committee and let resident owners run the building. These NCAT Members have powers that they either don’t know about or are too timid to use.
About as handy as a chocolate teapot!
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 think you’re being a wee bit harsh, Austman.
Not meaning to be harsh! More puzzled than anything.
I was reading this thread independently. I couldn’t see what a new lift warranty issue had to do with the NCAT appearance. I think that’s a fair enough comment if just reading this thread.
Now I see there have been a lot of other threads created by the OP!
You can’t just ask on the day ‘Oh and BTW, can we sack the SC as well?’
True, but the Member has the discretion to do so.
Section 238: The Tribunal may, on its own motion or on application by an interested person, make any of the following orders: (a) an order removing a person from a strata committee … (c) an order removing one or more of the officers of an owners corporation from office and from the strata committee.
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.
On reading this thread “independently” there seems to be 2 independant issues. One is the lift and the other the SC. A new lift breaking down is a warranty issue not an SC one. The SC are not mechanics.
There is mention of the new lift being “signed off” which seems to be when it was decided to install a new lift. That doesn’t happen overnight so when did the work to install the new lift actually begin? If the lift company wasn’t immediiately available that is not the fault of the SC.
For example if the NCAT order to install the lift was issued on 1 Jan this year (quote “earlier this year”) then 20 weeks installation brings is to about 1 June. Expecting the SC to have the work completed earlier is not possible and outside of their role.it It is also unrealistic for them to know if “cheap” components would be used for the new lift so certainly unfair to blame them if this did occur.
NCAT will only accept hard facts and won’t blame the SC for installation issues by a 3rd party. It doesnt surprise me they won’t do more in the short term.
- You must be logged in to reply to this topic.