How does NCAT work (or not)? | NCAT - the NSW Tribunal | Flat Chat Forum: Your Questions Answered




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How does NCAT work (or not)?
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unit1
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06/11/2017 - 9:00 pm
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I’m trying to work out how NCAT operates. I was under the mistaken impression that it makes rulings based on strata law, but my first experience is that it seems to go wherever the tribunal member wants it to go.

A complainant took our EC to the tribunal to challenge an EC outcome they didn't agree with. I was there to represent the EC. I spent a few days gathering past minutes and contacting the management agents for clarification and set up an evidence-based defence, with references to strata laws etc. There was also an error of fact in the complainant’s submission I wished to address. 

The complainant turned up with virtually nothing. We had minutes that documented everything and as such thought he had not a leg to stand on. 

What happened at NCAP however was that I was grilled for about 20 mins by the arbitrator as to why I/We had not granted him these things. Points of Strata Law, mention of minutes, even requesting to see some of his "evidence" was knocked back, thwarted or summarily dismissed. The arbitration member had the stage and I could barely get a word in edgeways. I got the feeling I was being worn down in the hope I would agree to his demands and close the case quickly. I did get to table some things toward the end, but it was a marathon. What I presented was ironclad but made no difference to the direction of the proceedings, which surprised me.

So the question is, what does NCAT do and what rulings do they or can they make? Can they force a committee to perform an action they do not agree with and seemingly has no basis in strata law as its commonly understood? And how is one to submit evidence in a logical order or challenge the complainant’s submission if it just goes in the direction the panel member decides? 

Are there any rulings made at the end of proceedings based on strata law or is this just a gladiator match between myself and the complainant, the outcome of which (ie one side decides to fall on his sword) is documented by the arbitration member and becomes enforceable? Any insights would be helpful as I need to return to the bear pit in a few weeks to recommence where we left off.

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Puddn
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07/11/2017 - 10:26 am
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Hi Unit 1

I am no lawyer, but do have some thoughts on your dilemma.

You made the comment that the Member asked 'why/I had not granted him these things'?

Could it be that, although due process was followed (as evidenced by minutes etc), that your decision to 'not grant' was unreasonable or unfair? In which case the Tribunal can override decisions of the committee/OC.

Does the fact that the complainant showed up with virtually no documentation show a level of confidence? 

You do not give any indication of what the dispute is about, so am just playing devil's advocate here.

Certainly the Tribunal is required to base their decisions on the law, but if they err then an appeal to a higher authority is an option. 

Good luck with it all.

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unit1
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07/11/2017 - 12:04 pm
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Yes the complainant was arguing the fairness test, which is subjective, but I didn’t think it would hold any sway. I’ve spoken to about 6 different people in different strata schemes and all agree that they also would not grant this to a unit owner. 

There’s a sort of trust system with strata that if we all follow the logic of what is and isn’t in the law, or what you often find in the “what’s in and what’s out” fliers, or based on advice from strata management, that we all get along better. Sometimes we don’t get what we want and get out voted and we cop it sweet. This person decided to take it to NCAT instead.

We don’t want to set a precedent where we go outside of this common view.

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Puddn
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08/11/2017 - 10:43 am
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Unit1 - Yes, I agree completely. 

We have a situation where a lot owner thinks it 'unfair and unreasonable' not to be allowed to run his washing machine at 1.00am - despite the fact that it wakes residents of two adjacent lots. He argues there are no by-laws in place that prevent his using his washing machine at a time that suits him. And he reasons that our by-law 1 (noise) is not applicable because it does not reference noise from washing machines.

So guess where we are next week? We are trusting NCAT will be 'fair and reasonable'. 

So, yes - unfairness is subjective and it is important for committees to take a stand if there are proper grounds and if the opponents point of view has been properly considered.

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Lady Penelope
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08/11/2017 - 11:21 am
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Puddn - Can you tighten your by-laws to include operating hours for the washing machines? This would need approval at a general meeting, and would also need to be registered, before it becomes enforceable. 

I am not claiming that the following comment applies to your scheme but sometimes strata schemes erroneously believe that 'house rules' posted on the wall of a laundry are sufficient to impact on behaviour. However, by-laws are the only enforceable methods to do this, particularly for certain types of people e.g. those who like to 'push the boundaries'.

A by-law should avoid the subjectivity surrounding "fair and reasonable".

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Puddn
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08/11/2017 - 5:57 pm
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Thanks LP. We have considered a by-law for washing machines, but then we might need one for vacuuming, treadmills and the like.

We do have a 'machinery by-law', but again no time restrictions - but noise cannot go above "5dB(A) above the background noise level when measured at the boundary of the lot". 

Which is not overly helpful at 1.00am on a Sunday morning.

So for now, we have relied on the noise by-law. Seems to me committees can get by-lawed out at times, and when by-laws are challenged only a legally trained mind can sort through the pedantics.

I am certain that NCAT's determination will make a difference to what we do from now on.

We will be very happy with either way the decision goes because then the committee can remove itself from being in the middle of the sandwich and bearing the brunt of anger from both sides.

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Lady Penelope
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08/11/2017 - 7:40 pm
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Sorry Puddn - I thought the washing machines that you were referring to were in a communal common property laundry. Inside and apartment is a different 'kettle of fish'. 

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JimmyT
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08/11/2017 - 9:47 pm
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Puddn said
Thanks LP. We have considered a by-law for washing machines, but then we might need one for vacuuming, treadmills and the like.

I'm not sure you need a by-law at all. Read this fact sheet. It says, basicall, noisy domestic appliances should be run between 8pm and and 7am (8am on Sundays).  It doesn't mention washing machines specifically but it doesn't exclude them either.

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Puddn
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09/11/2017 - 7:57 am
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JT - Thank you. Have added that to my arsenal.

What I particularly like is that the complainant would have to take the action, not the committee....?

In our scheme, the committee always advises the complainant that they can take their complaint directly to Fair Trading/NCAT or they can wait for the committee to go through due process (which takes much longer as we try to resolve the issue internally).

This is the first time (in 10 years of our existence) that we have had to go to NCAT for a noise complaint.

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