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Alternative dispute resolution by Secretary
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Puddn
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07/07/2017 - 10:47 am
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Does anyone have any experience in "Alternative dispute resolution by Secretary"?

And if so, has NCAT accepted their in-house process as acceptable? 

In speaking to Fair Trading (on a separate matter) they advised that mediation via Fair Trading was the only option prior to applying to NCAT for an order. 

We have a situation where an owner has not complied with an agreement (relating to pet) made with owners at a general meeting. The agreement was formally itemised on the agenda and unanimously approved by owners.

SM advises that a 'notice to comply', approved at a strata committee meeting is the first step, followed by application to NCAT for a fine is the correct procedure.

Strata Committee is keen to go down the quickest, most painless path.

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JimmyT
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07/07/2017 - 11:25 am
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If you are seeking a fine following failure to respect a Notice To Comply, mediation is not required.

The Notice To Comply must be on the prescribed form. Also, unless it was issued by the strata manager, copies of the agenda and minutes of the meeting at which issuing the Notice To Comply must be presented.

However, if you are seeking orders, the NCAT application form is crystal clear (my emphasis in bold):

Evidence of attempted mediation must be provided for certain strata applications ... You must apply for mediation with NSW Fair Trading before lodging an application with NCAT. 

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JimmyT
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07/07/2017 - 12:25 pm
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Just to clarify, there is a difference between a "Notice To Comply" and NCAT Orders.  The process for issuing a Notice To Comply is described in the first extract from the Fair Trading manual Strata Living (below)

A Notice To Comply must be issued on the prescribed form and has to be issued by the strata manager or by the committee via a strata committee meeting (with agenda and minutes) as per the instruction on the form.

If the NTC is ignored, you can then apply for a penalty (fine) for the breach of a by-law. This step does not require mediation (see extract 2 from Fair Trading's Strata Living below)

If you go for Orders, you are asking NCAT to order the owner to abide by the by-law.  This does require mediation first but the fines for disobeying the order are potentially much higher.

The "quick and dirty" solution is a Notice to Comply - the threat of a fine may be enough to focus the resident's mind.  

The longer but more serious process is Orders (something you might consider later if a fine doesn't work) and that requires Mediation at Fair Trading.

However, you can organise your own internal mediation to try to preempt going down the official channels.  It all depends of the seriousness of the issue and the disposition of the parties involved.

From Fair Trading's booklet Strata Living

Breaching the by-laws
If a resident breaches a by-law, the strata committee can first contact the resident to advise of the breach, and ask that they stop the conduct that is causing the breach.
If this is unsuccessful, the owners corporation may issue the person responsible for the breach with a Notice to comply with a by-law. If they have the delegated authority, a strata managing agent may also issue a notice to comply.
If there is a breach after the notice has been issued, the owners corporation may apply to the Tribunal to impose a penalty, after resolving to do so at a general or strata committee meeting.
If the Tribunal has already fined the owner or occupier within the last 12 months for a breach of the same by-law, the penalty imposed by the
Tribunal can double to a maximum of $2,200. In this case, the owners corporation does not have to issue another notice to comply before applying to the Tribunal to impose the fine 

 

Lot owners or the owners corporation can lodge certain disputes directly with the Tribunal without needing mediation first. These include matters seeking an order:
• to appoint or require the appointment of a strata managing agent
• allocating unit entitlements
• for access to a lot by the owners corporation to inspect or repair common property
• seeking records from a former strata managing agent to be provided to an owners corporation
• for inspection of records
• imposing fines, such as for a by-law breach.

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Puddn
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08/07/2017 - 9:00 am
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Thank you JimmyT.

Our SM is not happy with the "If they have the delegated authority, a strata managing agent may also issue a notice to comply". So, we will add a suitable motion at our next AGM for future clarity.

In our particular case, our recalcitrant owner has now formally requested 'mediation'  via 'alternative' means. That is, by Secretary..... who by the way is happy with that suggestion, but is concerned that mediation will not be accepted and a second round of mediation with Fair Trading may be required. This is based on comments from Fair Trading themselves who said 'alternate' mediation would not be accepted by NCAT.

Guess, I will give NCAT a call. 

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JimmyT
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12/07/2017 - 4:32 pm
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There is a bit of confusion here becasue the Secretary in the Act sometimes refers to the secretary of Fair Trading.

Anyway, this is what my person from the Ministry told me:

They would prefer owners to sort these things out amicably and internally.  If you want to use a mediator (maybe the chair of another building) that's fine, as long as everyone agrees on the outcome.

However, if there is a serious prospect of this requiring adjudication at NCAT you should contact Fair Trading about getting approval for mediation which could be through them, the Community Justice Centre or a professional service.

Once you have approval, you can proceed in the knowledge that the mediation or attempted mediation will be accepted as the mandatory precursor of  an application to NCAT.

Don't forget that mediation only has to be attempted - if the respondent to a complaint refuses to participate an approved effort to mediate still counts.

And there are some issues that don't require mediation.  Also, the mediation form says that if you want to have a pet in a building whose by-laws clearly say "no pets" they will not accept an application for mediation.

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