OC ignores NCAT order | NCAT - the NSW Tribunal | Flat Chat Forum: Your Questions Answered




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OC ignores NCAT order
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SeeksHelp
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02/08/2016 - 12:43 pm
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I have won an order that the owners corporation was unreasonable in refusing to make a by law. The OC has not appealed the decision.  I have been to the AGM again and the owners corporation are ignoring NCAT order and still refusing to make the by law.

Does anyone have any experience in this area of appealing to the NSW Fair Trading and what happened?

Does appealing to Fair Trading give the OC the opportunity to appeal again?

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Pamster
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02/08/2016 - 7:23 pm
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Apply for a penalty order, this automatically goes to the NCAT tribunal, where a decision is made at a hearing in front of a tribunal member rather than an Adjudicator. If the decision at the tribunal is also in your favour you can ask for costs, which you cannot get from an Adjudicator's order. This might force the EC / Owners to take notice.

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justsaying
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02/08/2016 - 8:44 pm
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SeeksHelp said
I have won an order that the owners corporation was unreasonable in refusing to make a by law. The OC has not appealed the decision.  I have been to the AGM again and the owners corporation are ignoring NCAT order and still refusing to make the by law.

Does anyone have any experience in this area of appealing to the NSW Fair Trading and what happened?

Does appealing to Fair Trading give the OC the opportunity to appeal again?  

Can you provide more information? Eg can  your order impact on other owners? Etc etc. I understand that the option is to go to the  NCAT ombudsman to seek assistance 

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JimmyT
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03/08/2016 - 1:11 am
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justsaying said

Can you provide more information? Eg can  your order impact on other owners? Etc etc. I understand that the option is to go to the  NCAT ombudsman to seek assistance   

There is no NCAT Ombudsman.  You go to NCAT for orders, penalties and appeals.

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SeeksHelp
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03/08/2016 - 7:29 am
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Thanks for the replies, to provide a response to just saying the by law is just for my lot and the works do not impact any other lot owner. The works have not been made and the by law is getting the pre approval 

I am just unsure that if it goes to a tribunal, does that open up everything or only the penalties and maybe varying the order to make the by law?  Any thoughts?

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JimmyT
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03/08/2016 - 11:03 am
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SeeksHelp said
 The works have not been made and the by law is getting the pre approval 

Not sure what this means.  Who is getting "pre approval" and from whom?

On the other question, if NCAT has issued orders, a further action for pursuit of penalties and costs is highly unlikely to result in the whole issue being re-examined.

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Sir Humphrey
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03/08/2016 - 1:41 pm
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Hmm. We have that situation the other way around. An owner erected a structure on the unit area without approval. The EC issued a rules infringement notice (ACT-speak for breach notice) with a generous deadline and that was ignored, so we went to the tribunal. The Tribunal decided that our rule on alterations was valid and that the infringement notice was valid and the unit owner was ordered to comply with the notice (requiring the structure to be removed) with an extended deadline. She has now just failed to remove the structure by the new deadline. 

So, here at least, we have learned that the next step is to go to the Magistrates Court seeking an 'enforcement order' to give effect to the Tribunal's order. In this case where a person was required to do an act (IE remove the structure) the Court can appoint another person to do that act and order the person who should have done it to pay costs. 

In the case of a by-law not being made by the OC after it was ordered to do so, the relevant NSW Court might be able to simply deem it to have been made. 

I was worried in our case that the unit owner might have a mechanism to reopen the matter and start the argument from scratch again. I was told that would not happen. The Magistrates Court would only be interested in making the Tribunal orders happen. I would expect NSW to have a parallel approach. 

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SeeksHelp
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03/08/2016 - 3:09 pm
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Thanks everyone, good food for thought.  I would welcome more experiences and thoughts if anyone has them to share.

To provide more clariat when I mentioned pre approval, that means we have not made any changes, we want the by law approved before we do any works.

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justsaying
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03/08/2016 - 3:26 pm
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Seekshelp said  the by law is just for my lot and the works do not impact any other lot owner. The works have not been made and the by law is getting the pre approval

 

I think i would question why the OC chose to ingore the order? Are the OC usually receptive to owners  wanting to change/add a by law? Does seekshelp  have an answer in writing as to the basis of the rejection following the meeting? In NSW one has the option of going to the Supreme Court ,however all should be resolved by an honest transparent OC before costly legal fees! 

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SeeksHelp
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04/08/2016 - 9:51 am
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Thanks justsaying, thegrounds stasted at the meeting was that it was not part of the original building so it should not be approved.  All other grounds were grounds dismissed by the Adjudicator as unreasonable.

The OC at the same meeting approved a enters removing internal walls, allowed adding roofs on top of pergolas and many more.  

I am nervous about the costly legal fees, I don't want to have to pay OCs costs too.

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justsaying
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07/08/2016 - 2:15 pm
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Hmmm.... Seekshelp, it Seems to me the OC objection is hardly valid, as traditionally owners are permitted to make changes to their lot by supplying the by law to accept  responsibility to its maintenance. You have stated other by laws were approved so there appears to be involved for OC to object so strongly? 

Its my experience that some owners can be discriminated against a OC driven by self interests and with the ability to contact owners directly to obtain support

In  my opinion you have no choice IF you want the by law approved to return to adjudication and ask for a penalty. It might cost you but a GOOD strata lawyer can help smooth the waters good luck.

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07/08/2016 - 5:10 pm
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SeeksHelp - given that you have an order of an Adjudicator that the OC must implement a by-law, if I were you I would proceed on the following basis:

- send a letter to the OC noting the Adjudicator's order and advising that you intend to commence the relevant works on X date.

- also note that you have done all things necessary in order to put the by-law in place, and that the OC has chosen to ignore the Adjudicator's order.  In light of that, you consider it is reasonable for you to assume that the OC intends to assume responsibility for the works going forward.

- start the works.

- wait for them to do something.  I doubt that they will, and if they do, for example seek an interim order for you to cease the works, they won't have a leg to stand on.

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