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One of our long-suffering Flatchatters took her problems with her strata committee to NCAT the other week.
The dispute was all about work that the owners corp should have done in and around her property but never got round to.
Prior to this, at a general meeting, the committee pushed through a by-law saying that anyone who took …
https://www.flatchat.com.au/roundup-revenge-as-bullying-by-law-is-bounced/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.
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Really informative read. So to be clear, these type of bylaws are not worth the paper they are written on and the expense getting them in? The reason I am asking is that our strata is in the process of drafting a “differential levies for default and related expenses” bylaw.
The purpose is that we have an owner that has had 5 breach letters in the past 2 years with noise infringements and constant unprovoked verbal abuse to residents and visitors. A history of 13 years in total but we weren’t aware of of our rights and bylaw breaches until another matter came up and the abuse was mentioned by another council member in 2017.
We’ve not bothered with breaches 6 and 7 but many, many more incidents have been documented to the strata manager in the last 2 months since letter number 5 . I have been on the main receiving end of the harassment and sought legal advice regarding a restraining order or a Cease and Desist on the suggestion of the strata company.
My lawyer said it was strata responsibility and for the council of owners to pursue the repeated breaches through SAT since the notices have had no effect. Because we do not have this bylaw, we were advised to pass it through at the cost of roughly $2500 and ultimately SAT proceedings could be started with the expectation that we pass the cost of the further legal fees onto the offending owner instead of us.
Basically is this process of a new bylaw is a whole load of rubbish? And SAT will decide who pays the costs at the end of it anyway? Look forward to your advice.
Going in asking for costs at the start might not be a good look since the Tribunals are intended to generally operate with each party looking after their own costs. It does not cost much initially to apply for an order. Be clear about what you are asking for. Most likely that would be for an order that your owner must comply with the breach notices.
If the owner continues to offend in the same way, they would no longer be just ignoring a breach notice, they would instead be failing to comply with a Tribunal order, which is a more serious offence.
If you are lucky, just going to the initial mediation or directions hearing, which are relatively informal, may be enough to make it clear you are serious and for the owner to decide to behave better. You can ask for ‘consent orders’ at that point. If the owners says ‘I won’t do it again’, you can ask for a consent order, that is an order that both parties agree to, to give that promise the extra weight of an order. If they do do it again, you are immediately in a stronger position. Tribunals don’t like it when their orders are ignored.
While it is daunting at first if you have no experience, the Tribunals are accustomed to dealing with ordinary people who have no legal training. The main thing is to be very clear about what order you want. It has to be very concrete – that some person does or does not do some particular thing in some stated time.
Thank you for the advice. I take it that we do this as a council and/or the Strata company? We have an EGM next week for the bylaw drafting but if it is pointless, then we may as well discuss applying for an order instead. I’m am thinking the strata company want to use legal representation for this. The offending owner has abused them over the years as well and is going down the path of defamation that I am coercing the council and abusing my position. I’ve just had enough of the insults and derogatory comments directly and indirectly made to myself and my son and unfortunately can’t follow plan C with my lawyer and to sell up like 90% of the other residents over the years.
The EGM could pass a motion directing the council/committee to seek Tribunal orders to enforce a particular set of breach notices, which should specify what by-law has been breached what the owner is supposed to do or not do to remedy that breach. In itself that would add weight to the seriousness with which the whole Owners Corporation takes the matter and it would demonstrate that the matter is not just about one member of the committee with an unreasonable beef. The motion could include approving a budget for legal expenses. Don’t ham-string the committee by not allocating enough. The GM resolution might also direct the committee to take advice on whether it could recoup some or all of that cost through a Tribunal order or other means. I don’t think you could just bill the offending owner without the Tribunal authority.
Where I am (ACT), the strata legislation allows the committee to take legal action if the cost is unlikely to exceed an amount set and adjusted from time to time by regulation. If a general meeting approves a cost then the default limit on the committee is overridden by the general meeting direction.
We also have a section of the Act which says the OC can recoup reasonable costs, including legal costs, if it has in carrying out its functions incurred an expense, or carried out work, that is necessary because of a wilful or negligent act or omission of a member of the corporation, or an occupier of the member’s unit; or a breach of its rules by a member of the corporation, or an occupier of the member’s unit.
Perhaps you have a similar section of your strata act, which you can refer to.
Cheers for that info. We don’t have that section of the Act where we can recoup reasonable costs for the circumstances you have described. Our bylaws are the stock standard type apparently and have no special inclusions. We have a detailed email trail from the last 2 years from numerous residents besides myself and their same harassment complaints spanning a decade so it’s clear I’ve no personal agenda. I’m physically the closest in proximity to this owner so directly in her firing line and our opposite resident has now vacated, so the abuse has intensified as the witness factor is now less.
If you are not doing so already, I suggest keeping a diary of incidents. Another option, suggested recently in this forum by JT for another person facing verbal abuse, is to pull out a mobile phone and say loudly that you are recording. Privacy laws only prevent secret recording.
No I’m in WA Jimmy. SAT is our NCAT equivalent.
Lol yes Jimmy. We are the council of owners or strata council here in the West. I guess it’s the new term for Body Corporate. Our Strata company is the professional business that we pay to manage our complex and affairs. I get confused too with the eastern states terminology and you all have different laws gahhh !! 🙂
Yes I/we are and email what has happened to the strata company. Major events straight away, niggly ones I may ignore until there’s a few too many and then it’s compiled into one. Unfortunately a large amount for my lawyer to read 🙁 The majority of the time myself and my son have our phones at the ready or already recording when we are outside but thanks for the heads up about the warning. A big thank you really for the great advice and info. I feel more reassured about the logistics of this legal hoo haa.
Ahh….. this is the grey area Jimmy. The offender is a 77 year old woman hence why I have held back on police involvement even at the insistence of the strata company for 2 years. Yes, it’s quite laughable but her abuse is quite vicious. And she does it standing at her kitchen window or behind her front security door where she sits all day watching. Our side of the complex is elevated and overlooks most of the common driveway and visitor’s car park and we have to go past her unit to leave or come in. Only once has she come outside to scream at me when parking and then proceeded to abuse another 4 residents when they came outside to see what the commotion was. No she doesn’t have dementia. My lawyer said I would be hard pressed to get a restraining order due to her age. Even with my personal circumstances of having a teenager under repeated periods of suicide watch over the years and she has taken him out too with her insults.
Is there someone this lady gets on with or has she alienated everyone? Is there some way to indirectly influence her to tone it down a bit via a neighbour/friend? Or is it a mental health issue that you don’t have much chance of fixing?
This lady has alienated everyone. The only 2 residents she hasn’t given grief to is to 2 elderly gents that rent further at the end of the complex. 1 long term and 1 short term. And they are very much to themselves. Note we all get on famously besides this lady. I used to be the peacemaker when I moved in as she befriended me because I’m one of those really handy females that knows and can do alot of fixing and maintenance as there were long periods when she had fallen out with her own family and needed a lot of assistance. That went by the wayside eventually too. I don’t think it’s a mental health issue but more a lonely woman with little to do that fears losing control. And being a bully is the only way of maintaining that.
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