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Roundup: Another fine mess as NCAT floored by loophole
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13/11/2017 - 9:43 pm
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Once again, the Flat Chat Faithful have done us proud by tipping us off to a big deal; this time it’s a story that reveals a fairly major loophole in the whole NCAT fines system.

Or, more to the point, the complete lack of a legally enforceable fines regime.

With the strains of Send in the Clowns ringing in my ears, I find myself smacking my head off the nearest (albeit flimsy) wall in sheer frustration and disbelief.

I thought we were past all this.  I thought we had ditched the whole “nobody important lives in strata so let’s ignore them” attitude.

Read the article for the full horror story but basically, in defiance of by-laws and basic common sense, an owner had lifted her carpet, polished her concrete floor and refused to reinstate any sound insulation, presumably because it would be uncool.

NCAT fined her $2500 but it only stuck because she’d come under the old laws – shows you how long it takes to get even a cut-and-dried case like this in front of the Tribunal

The OC was lucky it had taken so long; if it had occurred under the new laws, the tribunal Member said, only the Minister could have imposed fines.

Now, no one knows better than us that Matt Kean has more than enough on his hands without being expected to impose fines on every by-law breacher who pops up at the Tribunal.

How about newly minted fair Trading Commissioner Rose Webb? Right now she’ll be too busy compiling her Christmas list of toys that are out there waiting to blind and maim our children.  Bogus builders and dodgy mechanics don’t take holidays.  Ticket touts and charity cheats are gearing up for their peak season. Bait and hook sales scams are almost as common as internet phishing.

But enough is enough! There is no shortage of good reasons why strata needs to be taken out of Fair Trading and given either to the Attorney General’s office or, at least, Housing.

And while we are at it, can we get rid of NCAT adjudicators who have never lived in a strata scheme? Open it up to people who have served as chair in a high-rise – in fact, make that a prerequisite.

We need what?  Legal expertise from people like retired solicitors? You mean like the battalions of former briefs who didn’t notice until recently that the law had a gaping hole in it?

Fix it, Keano!

Meanwhile, the questions and answers on the Forum would have been stacking up like planes circling Ho Chi Minh City Airport (Saigon to you), had it not been for the solid work rate of our Stratagurus, Sir Humphrey, Lady Penelope and ScotlandX (Laird of the Interweb).

Jeez, there’s a thought.  Empower that trio to impose fines and then we’d see a few by-law baddies sharpen up their ideas.

Anyway, here’s just a sample from the past week:

  • Does the compulsory by-law review mean we have to update our by-laws by November 30? That’s HERE.
  • Can the strata manager just decide to run the strata committee meeting as chair, regardless of what the owners want? That’s HERE.
  • What can you do about kids yelling and screaming in the common swimming pool? That’s HERE.
  • Can the committee use “House Rules” to avoid giving us keys for the garage? That’s HERE.
  • Adoption of strata software draws privacy complaint from an owner. That’s HERE.


As ever, there will be a stack of new questions and answers on the Forum before you even read this. Don’t miss it – the next problem may be yours.

strats all
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14/11/2017 - 9:25 am
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I read that article aswell. Am I understanding this correctly, that NCAT are in effect powerless to enforce By-Laws?

When you refer to the new laws and old laws do you mean as to what by laws are registered or the new Strata legislation that was recently introduced?

It's already hard enough to get people to follow By-Laws. I can only imagine what would happen once people start to get a wind that nothing can really be done if they dont follow By-Laws.

Sir Humphrey

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14/11/2017 - 9:41 am
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In the ACT, the Tribunal can give orders that money be paid or that a person must do or not do some thing. However, it can't enforce its own orders. Instead, that function falls to the Magistrates Court.

I have experienced that once. An owner added an unapproved structure to her unit. We have a (somewhat customised) rule in place that includes that unit owners must not alter the unit without permission. The committee first spoke to her and then wrote to her about removing the structure. After some back and forth about why she thought it was reasonable and did not need approval and why we disagreed and would not approve it, the committee issued a 'rules infringement notice' (aka 'notice to comply' in other places). She did not comply and the Tribunal gave the orders we sought, which were that she must comply with the rules infringement notice by a certain date. The date passed and she had not complied. 

At the Tribunal I asked what we could do in the event that we got the orders we sought but the unit owner did not comply with those orders. The Tribunal advised that we would then need to seek an enforcement order from the Magistrates Court because the Tribunal could not enforce its own orders. 

The unit owner tried to use the Magistrates Court as an opportunity to have the whole matter reconsidered. The magistrate shut that down very quickly. He was only interested to know if there had been some reason why the unit owner had been unable to comply with the Tribunal order. He emphasised that the facts of the matter had all been determined already by the Tribunal. He gave orders that the OC could enter the unit area to do that which the unit owner had been ordered to do by the Tribunal but had failed to do. In effect that meant the committee could appoint an appropriate tradesperson as its representative to enter the unit and remove the structure. 

At the 11th hour, the unit owner finally got her own tradesperson to remove the structure. 


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21/11/2017 - 8:33 pm
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When I rang the Minister's phone number I ended up with a rather different story... What loophole?   

They acknowledge no loophole and impression given is that all is fine.
I will be following this up myself but would much appreciate any hard facts you case to shoot my way.

It just so happens that tonight (21/11/2017) I am organising a DISCUSSION MEETING about bylaws.

I'm sec of a body corporate for about 300 units.However not many, I suspect, can bear to wade though bylaws for revision .. and I will be pleased if even as many as five attended.

Most find reading bylaws as dull as dishwater. Yet a lot of money can be at stake as nobody knows better than yourselves.

If I can get to the bottom of this loophole business I can send you back my result.

First off the Minister's office brushed it off as just "unfortunate" press reporting.

But my antennae are up .. I smell a rat or something at least slightly off somewhere.

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21/11/2017 - 8:46 pm
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This, from a spokesperson for Fair Trading:

“Under the Strata Schemes Management Act 2015 (the 2015 Act), the NCAT does have the power to impose monetary penalties on strata scheme owners and occupants who have failed to comply with Tribunal orders requiring them to comply with by-laws. This power is in section 147 of the 2015 Act.

In regard to the Tribunal case raised in the Sun Herald article of 12 November 2017, the Tribunal decided that it did have authority to determine this matter and on 31 October 2017, orders were made requiring the lot owner to comply with the relevant by-law by12 January 2018, or pay a penalty of $2,500.00.”

I, for one, am not satisfied with this response. Why? Firstly, they don't address the issue, just resorting to their standard response of pointing at the Act  without explanation of how strata lawyers and an NCAT member could have got it wrong.

Also, the case they cite as proof that the new laws are working fine is the one that was heard under the jurisdiction of the old laws and is therefore irrelevant.

I mean, how stupid are these people - or how stupid do they think we are?

How do you know when politicians and bureaucrats are trying it on? When they answer the question they wish you'd asked, rather than the one you actually did.

At least two prominent strata lawyers have raised this issue.  Once again, Fair Trading resorts to smoke and mirrors. Grrrrrr!

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