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Bullying Owner Trying to Get in Committee
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monkey_business
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07/06/2017 - 11:01 pm
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Hi this is my first post so go easy but I am looking for some advice or some guidance regarding how best to deal with a bully owner. This may be unusual circumstances as I am part of the executive committee for a strata consisting of roughly 40 lots in NSW and dealing with an owner. (I know usually the problems are the other way around with the person in the EC abusing their power)

Cutting a long story short, there is an owner lets call him Mr A. Mr A used to be in the EC. During his reign, he caused a lot of problems and resulted in the strata being appointed a compulsory strata manager under his watch in the EC. Mr A was abusive to everyone including the Strata Manager and any other stakeholders and in many cases be treated as harassment. Strata levies sky rocketed during this period and lets say no one was happy.

Fast forward a few years and the strata plan has a different strata manager that the current owners are very happy with (other than Mr A). Things are looking to slowly get back on track. All the owners know that they cannot have Mr A back in the EC making decisions for them. In fact, in the last AGM, Mr A did not get a single vote apart from his own.

Now that Mr A is not running the show (and have not been for a few years) in the EC, he bullies/abuses/harasses other owners and other members of those that are in the EC so that they quit and he has a shot to get nominated again.

The biggest problem is his constant abuse of the proper legal channels. I understand that the Department of Fair Trading and the NSW Civil and Administrative Tribunal (NCAT) are setup for good reasons. However, Mr A is abusing these 2 departments and constantly have them questioning the practices of the strata plan seeking to mediate/remove EC members/Remove Strata Managers/etc. when in fact the only person that is unhappy is Mr A. NCAT alone has multiple hearings over the last few years. All of them have been found against Mr A and thrown out.

This is all a hollow victory, the current EC are frustrated and exhausted. This endless stream of cases and requests for mediation will never stop. It also takes up valuable time for members to deal with mediation/cases rather to deal with proper strata issues.

Is there anything we can do to stop Mr A from launching any more requests with DoFT/NCAT? How can 1 unhappy owner have so much say to challenge the rest of the overwhelmingly happy owners in the building?

Any advice would be much appreciated. Thanks!

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tharra
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08/06/2017 - 9:02 am
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Does NCAT have the ability to declare someone the equivalent of a vexatious litigant?

http://www.supremecourt.justic.....dings.aspx

Are the costs associated with all these actions documented? Sheeted back to Mr. A.?

In the absence of any real advice apart from hang in there, I'd be ordering some nice bottles of wine & having some EC therapy sessions. Keep the EC members supported with their focus on the long term.

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monkey_business
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08/06/2017 - 11:06 pm
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tharra said
Does NCAT have the ability to declare someone the equivalent of a vexatious litigant?

http://www.supremecourt.justic.....dings.aspx

Thanks. That is definitely something that I have not considered and may be worth looking into. Something for me to research and hopefully they would have something in place for this.

 

tharra said

Are the costs associated with all these actions documented? Sheeted back to Mr. A.?

The irony behind it is that Mr A is indirectly partially funding his own legal defence against himself via higher strata levies. He knows this but doesn't care. The rest of the building though are sick of it. These costs are all well documented in minutes and cost agreements between relevant parties

 

tharra said

In the absence of any real advice apart from hang in there, I'd be ordering some nice bottles of wine & having some EC therapy sessions. Keep the EC members supported with their focus on the long term.  

You bet. Or to save it for that occasion that (hopefully sooner rather than later) Mr A decides to finally move on. The whole building has already agreed to throw a party when that happens!

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JimmyT
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13/06/2017 - 3:53 am
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This is an extreme case but here is a recent example of someone declared a "vexatious litigant".

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Puddn
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14/06/2017 - 9:35 am
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What would happen if you did not agree to mediation or attending NCAT?

On three separate occasion we (committee) have refused to participate in what we considered frivolous/vexatious complaints but we did provide detailed, polite and respectful explanations to those bodies. Result was our favour.

Guess it may depend on the specific type of complaint..?

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Sir Humphrey
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14/06/2017 - 2:21 pm
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Puddn said
What would happen if you did not agree to mediation or attending NCAT?

On three separate occasion we (committee) have refused to participate in what we considered frivolous/vexatious complaints but we did provide detailed, polite and respectful explanations to those bodies. Result was our favour.

Guess it may depend on the specific type of complaint..?  

I think not taking part could be risky. In the ACT, the notice of a Tribunal preliminary conference (which is like a mediation session) or a directions hearing carries a warning that if you don't show up the Tribunal could give the orders being sought by the applicant. 

I think the best strategy, even though it is more work, is to do everything by the book. So send a response, the "detailed, polite and respectful explanation" but always copy any correspondence to the other party. You could request that the matter not be heard but show up if the request is not agreed by the Tribunal. 

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JimmyT
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14/06/2017 - 3:07 pm
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You have to differentiate not attending mediation and not attending the tribunal.

The former is not compulsory and you would be entitled to write to Fair Trading and say you were not attending because the complainant was using Fair Trading as a form of harassment by wasting committee time (listing all the previous failed cases).

For the Tribunal, I would be tempted to hire a lawyer to defend your position while making it clear before the hearing that you
a) would be demanding costs from the litigant and
b) would seek to have him declared a vexatious litigant by the Tribunal

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Stevecro
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15/06/2017 - 10:07 am
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I agree with JimmyT, mediation in NSW is not compulsory, so attending with a vexatious litigant would be pointless and a waste of time. I would also do everything by the book. Certainly defend all claims at the Tribunal in a respectful manner. Make sure you document everything, keep all evidence in case of future litigation and try demand costs from the litigant through the Tribunal. It is very difficult to 'stop' a vexatious litigant, just keep on top of the situation at all times and don't become complacent.

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monkey_business
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15/06/2017 - 9:07 pm
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JimmyT said
You have to differentiate not attending mediation and not attending the tribunal.

The former is not compulsory and you would be entitled to write to Fair Trading and say you were not attending because the complainant was using Fair Trading as a form of harassment by wasting committee time (listing all the previous failed cases).

That is correct. This has been the line that we have taken. Everytime we get a request, we notify DoFT that we do not wish to attend. Its just time consuming and more admin for everybody to deal with. As far as I'm aware, DoFT is purely an attempt at "mediation". Nothing is legally binding.

JimmyT said

For the Tribunal, I would be tempted to hire a lawyer to defend your position while making it clear before the hearing that you
a) would be demanding costs from the litigant and
b) would seek to have him declared a vexatious litigant by the Tribunal  

For the tribunal, I understand that decisions are legally binding so we actually have to attend to defend ourselves. We actually have already hired lawyers for this. The executives don't have enough time to deal with it and also don't want to risk stuffing up the argument/defense so prefer to have everything properly documented by professionals that should know what they are doing. Its just absurd that to apply to NCAT to initiate a case it costs something like $100 but to defend it will rack up thousands of dollars in legal fees.

Having said that, I'm not completely sure it is within NCATs jurisdiction to be able to declare someone as vexatious but I will definitely bring that up at our meetings. It never hurts to try.

Thanks for your help! Very useful posts and much appreciated

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JimmyT
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15/06/2017 - 10:25 pm
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monkey_business said
I'm not completely sure it is within NCATs jurisdiction to be able to declare someone as vexatious ...

Me neither.  I know they can reject applications for being vexatious in their Discrimination division but it says nothing regarding their strata section. I will enquire further.

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Puddn
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18/06/2017 - 2:40 pm
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To add to my earlier post - as it is interesting that our experience seems to differ considerably to the experience of others on this forum  - in that we were not invited to attend NCAT only to make a submission.

Our last dealing with NCAT was in December 2014 and was in relation to the installation of timber flooring. We applied for non approved timber flooring to be removed and the order was granted.

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Stevecro
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19/06/2017 - 9:07 am
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Strata Schemes Management Act 2015

218   Matters that may be subject to mediation

(1)  A person may apply to the Secretary for mediation of any matter for which an order may be sought from the Tribunal under this Act.

(2)  On receipt of an application for mediation, the Secretary must, if the Secretary thinks the circumstances of the case are appropriate, arrange for mediation in accordance with the regulations.

(3)  The Secretary may dismiss an application for mediation if the Secretary believes that the application is frivolous, vexatious, misconceived or lacking in substance.

Civil and Administrative Tribunal Act 2013

55   Dismissal of proceedings

(1)  The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

(a)  if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(b)  if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(c)  if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

(d)  if the Tribunal considers that there has been a want of prosecution of the proceedings.

(2)  The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.

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JimmyT
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19/06/2017 - 9:45 am
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Stevecro's points are valid but I think the one on mediation applies to internal mediation processes which are now allowed in NSW.  It doesn't prevent owners seeking mediation through Fair Trading.

Regarding the possibility of NCAT ruling a claim as vexatious, it still requires engagement and a response of some kind, including appearing at the Tribunal (you could respond in writing, but that is risky).

A cleaner but harder to achieve outcome would be to get the owner declared a vexatious litigant by a higher court

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monkey_business
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19/06/2017 - 10:45 pm
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JimmyT said

Regarding the possibility of NCAT ruling a claim as vexatious, it still requires engagement and a response of some kind, including appearing at the Tribunal (you could respond in writing, but that is risky).

A cleaner but harder to achieve outcome would be to get the owner declared a vexatious litigant by a higher court  

Agree. It is safer to have a representative attend in person. That way you can argue your point and explain things that are unclear in a written response. It is just a time consuming exercise but better be safe than to take the risk.

The other part that I am thinking of persuing is to have our EC representative bring it up to the judge at the tribunal about the number of vexatious cases. I'm guessing that  NCAT treats each case seperately with no reference back to previous cases that was raised with them from the same strata plan unless you explicitly point it out to them. This will hopefully raise some relevant alarm bells with them.

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Millie
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20/06/2017 - 10:10 am
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This is a really interesting topic.

For the last 4-5 years one has been documenting the constant breaches of various  and multiple levels of legislation within our Sydney Strata Scheme.

There have been two applications to the CTTT (1,200 pages) and NCAT which have been 'dismissed' by the Adjudicators, firstly as a result of a promise made by the respondents which was never actioned, as anticipated and previewed to the Adjudicator, and secondly on the basis that the applicant (me) is vexatious.

When anomalies occur one continues to submit Motions for Agendas, referring to the particular legislation for which one is seeking compliance.  Every single motion has always been ruled either 'out of order', 'vexatious', or simply defeated by the incumbants on the Strata Committee.

All offers and requests to hold a simple conversation with resident owners have been rejected. So too an official request for Mediation with the NCAT.

Now the term 'attempted bullying' is being used to describe requests to see legislation and correct procedure followed.

Ah, strata.  Pure theatre or real life?

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