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Consequences of inaction
struggler
NSW
StrataGuru
10/09/2012 - 7:57 am
Member Since: 02/11/2010
Forum Posts: 449
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19

Though I realize that the EC has no obligation to enforce the by laws, the point I thought I could present is that by not enforcing the parking by laws, and turning a blind eye to residents parking, this then causes damage to the visitors car spots as they are lawn areas. As the EC is required to maintain and keep in good repair common property, they would need to enforce this by law order to do so.

Even if they did start enforcing it, the visitors car park would now need re doing such is the state of it. I would not expect a lawn parking area to be in an immaculate state of repair. But the extra parking placing additional weight on the lawn plus the blocking of sun not to mention that any maintenance is difficult when cars who should not be there are, has caused additional damage. This will now cost money not to mention the area will have to be closed off to all to get it back to a useable state.

And to Not so Crazy Swede, that's for following my rants, tirades and occasional pity parties regarding my complex. I am compiling my "evidence" and examining all angles to take my complaint about/against the EC/ OC further. I have one other owner on board who is willing to make noise with me. Just one. I had a glimmer of hope last week when a ute pulled up outside. Thought the work outstanding form February would finally start. But alas, it wasn't. What hope though do I have when owners here believe it is because the SM hasn't carried out the repairs. It's the EC that tells the SM to get work done. So everyone here is waiting for the SM to approve, organize and carry out repairs. Everyone including the EC.

JimmyT
Sydney
Admin
09/09/2012 - 8:35 am
Member Since: 15/10/2007
Forum Posts: 2787
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Here's something from left field.  I have been working on the basis that there is no legal compulsion in the Act for Owners Corporations to enforce their by-laws and action their decisions (because there isn't).

However, I have recently been told by a very authoritative source that individual owners can take the Owners Corp to the CTTT and ask for an order to be made compelling them to do so.

The point that was made strongly to me was that it's not the EC that you prosecute, it's the Owners Corp as a whole (albeit that the EC will be expected to represent them and follow through on the order).  Any ruling from the CTTT not only puts the EC under pressure but gives a strata manager a lot of power to push for action and establishes a vital missing step on the road to the appointment of a statutory manager.

One point that was made to me was that it is important to make your initial approaches to the Executive Committee in writing so that their responses, or lack thereof, can form part of your case at the CTTT. The reality, I'm told, is that in most cases the EC will give an undertaking at mediation to move forward on the stuff they've been sitting on.  But, of course, you would want that in writing too.

That Crazy Swede
Guest
08/09/2012 - 1:35 pm
17

Struggler, I have been catching up on your postings. When is your 'day in court' so to speak? When will we know the results of whatever it is you are doing to set things straight in your apartment complex?

struggler
NSW
StrataGuru
07/09/2012 - 10:10 am
Member Since: 02/11/2010
Forum Posts: 449
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As I continue to contemplate my actions re the EC in this complex, I have been adding to the list of "neglect".

Our EC will not hand out NTC to those who park in the visitors car park. The SM has made it clear that they will not act without the ok from the EC. As members of the EC themselves are the main perpetrators of this breach either by parking there themselves or allowing their mates to then turning a blind eye to many others this is perhaps why they are so reluctant to act.

Our visitors car parks are actually grass. They were upgraded with an underlying concrete cell structure (similar to those found at sporting grounds where cars park on grass verges where soil is placed in the cells and grass seedmplanted). With the continual parking of residents, the grass has died, the moss has grown, there is soil erosion and therefore uneven surface and in some places the concrete support structure has lifted and moves when any weight is placed on it, person or vehicle. So an OHS issue.

Could I find the EC negligent under section 62 in that, by not monitoring the visitors car parks (the EC members go by every day and night and two have full visual access from their units) and not issuing NTC when owners make them aware of parking problems, that they are not keeping this common property area in good and serviceable repair and therefore in breach of the act?

makdap
Sydney
Sponsor
28/08/2012 - 12:48 pm
Member Since: 20/06/2012
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Dear Struggler

 

In a perfect world an owners corporation would be well run, the executive committee would have training and a working knowledge of the relevant legislation and all owners would want to protect and enhance their investment by getting involved. Unfortunately, some owners do take the ‘it’s someone else’s responsibility’ approach. An owners corporation has a strict duty to maintain common property and you are within your rights to insist the work be completed. You can take legal proceedings to force the owners corporation to conduct the work if necessary however we find that sometimes our approaching the strata managing agent and executive committee pointing out the duty to maintain property under section 62 of the Strata Scheme Management Act 1996 coupled with a promise that an application will be made to the strata schemes adjudicator to install a compulsory strata manager works wonders and commencing proceedings is not necessary.

Makinson d'Apice Lawyers - Legal services for owners, owners corporations, strata managers and community associations. Principal sponsors of OCN. Email: mail@makdap.com.au
struggler
NSW
StrataGuru
21/08/2012 - 10:22 am
Member Since: 02/11/2010
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I have thought of doing repairs myself FCF. But I would do this the week before I put this place on the market. I can honestly say that no one would notice me repairing common property. They all walk around with blinkers on not just the EC. And to fix the common property on my place and having it looking well maintained. – I estimate total cost would not be that great so would be happy to be out of pocket to be out of here! Total time for the works, half a day. The funny thing would be when the EC finally did get around to doing works in year or so they would repair the same areas because they just wouldn't look! So there is no chance of getting into trouble for repairing common property.

I do think a lawyers letter would get their attention and get their back up. But there is too much to do now, they cannot possibly get it under control. I don't believe they are capable of getting everything done. So a lawyers letter will cost me money, but nothing will actually be achieved, then I apply to CTTT to have declared dysfunctional. Though I am not ruling out a lawyer by any means. Something has to be done.

Have just found out that our new agreement for SM was only actioned yesterday. There seems to be a gap in time from old SM to new that I am trying to confirm. The more I have on them the better. I hope that the new strata reforms contain something making ECs more accountable. It isn't that difficult. Someone tells you there's a problem, if its common property get quotes for work, agree on quote, get work done!

JimmyT
Sydney
Admin
21/08/2012 - 10:13 am
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I would write a letter to the EC members (possibly copied to other owners) pointing out that they are failing in their duty under Section 62 of the strata Act. There is legal precedent to show that this section is absolute – it has to be followed regardless of the financial or other circumstances of the strata scheme.

You will require a schedule of works to be sent to all owners within 14 days or you will take action at the CTTT to have a statutory manager appointed.  A statutory manager will take over all the duties of the Executive Committee and Owners Corporation for at least a year and will initiate any work needed to be done on common property.  If there insufficient funds to complete all the work, a special levy may be raised.

There is no legal need for the SM to consult with owners during this period of appointment.  The Owners Corp, as represented by the Executive Committee, has failed in its statutory duties and has therefore lost the right to run the building.

The SM will choose the quotes and the companies to do the work.  They may also hire other services – like cleaners etc – to maintain the common property properly.  The SM ihas a statury obligation to fulfill the letter of the law – they may not be concerned by any "off the record" arrangements that may be in place.

EC members also should be aware that, as they have been informed of the need for repairs and maintenance several times, they may now be guilty of culpable negligence. That means their EC insurance may be invalid if there are additional expenses that would not have been incurred if they had done the right thing. If they have invalidated their insurance by willfully neglecting advice that work was required, they could be personally liable for the additional expenses.

Finally, tell them that you don't wish to go down this road but you aren't prepared to allow continued mismanagement of the building to result in the further deterioration of the value of your and other owners properties.

Then quote the Act (below), maybe refer to the specific works that need to be done, and light the blue touch paper and retire to a safe distance.


62   What are the duties of an owners corporation to maintain and repair property?

(1)  An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2)  An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

FlatChatFan
Sydney NSW
Flat(chat)Mate
21/08/2012 - 8:18 am
Member Since: 07/08/2011
Forum Posts: 156
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struggler said

So fasten your seatbelts, it's going to be a bumpy ride!

Struggler, personally I do not think a letter from a lawyer is not worth the cost and paper it is written on.  (Unless it is a subpoena of course.)

What does everyone think would happen if Struggler just gets his property repaired, and present the bill to the Treasurer/Secretary?

The problem is you need to money up front.

If they do not pay up, Struggler has a long paper trail to show how hard he tried to get the whole complex up to standard.

struggler
NSW
StrataGuru
21/08/2012 - 7:21 am
Member Since: 02/11/2010
Forum Posts: 449
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Have considered all my options again. If I sent letter from lawyer, could it not still end up in CTTT? Then I am out of pocket for the lawyer and it still ends up there. I don't believe that letter from lawyer will cause them to get up and do anything because quite frankly there is so much to do and I do not believe they have the ability or capability to put more than a dent into the works. Any quotes they have obtained have lapsed by now. And not attending to maintenance issues in the first instance, in a complex that is getting to an age that needs more attention these days, has meant more maintenance issues are springing up, meaning more to organize. If they had attended to issues as they arose, then tackled the next,one, they wouldn't be in this predicament. But they don't get around to anything.

The committee member just don't get around to even thinking about what they have to do. I was on the committee with one of these members and they did nothing just waited for someone else to organize (me) investigate (me) and follow up (me). There was only one other on the committee who would ask what we were going to do or who would help. So now no one checks the corro, no one follows up. They are waiting for each other. Meanwhile the work list is getting longer.

So I believe I should send them a letter giving them a week to give me a schedule for works in the complex. If they are organized and functional, this will just be a matter of typing or writing it up. If they haven't organized anything, this will not be possible. I will find out if we actually do have a new SM yet! If so will get their details, and leave a little note to owners detailing what is going on, or rather what isn't, and get them to complain via the n SM about the EC and lack of work. If the owners don't get up, we will see the same quotes coming around for the same works/maintenance at the AGM for the third year.

I really think that we would be better off without this committee. W have one member who breaks bylaws when ever possible and is only on the committee I believe so he can know what is said about him. We have one who is not aware of much about strata and doesn't comprehend what common property is and thinks everything is ok. And one who is new to the complex. Does not know the history of the complex or of those he is non the committee with. I did feel sorry for him until I contacted him about a matter. No reply. So he is on the right committee!

So while I gather info and get my act together more time will pass. May not be possible to get works started asmwemgetm into the last months of the year. Of course they will blame the change of SM. well apparently that only happened officially this week, to be confirmed, 6 months after the need to attend to maintenance was pointed out to them. Then they will blame me for not attending the AGM (apparently I should have cancelled my trip away then they would have organized something!). So fasten your seatbelts, it's going to be a bumpy ride!

struggler
NSW
StrataGuru
19/08/2012 - 8:12 pm
Member Since: 02/11/2010
Forum Posts: 449
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Ay, there's the rub, flat chat fan. I cannot sell my property, not with the wood rot out the front that is even more evident now it has been left to fester for over 6 months. And there is more maintenance issues that I haven't even bothered to point out the to EC. What's the point when they don't attend to anything, nothing, never get around to it. Then have the audacity to say it is because of owners like me who dont bother coming to the AGM that no work gets done! I have missed two in twelve years but did organize a proxy for those two. There is a reason why no work gets done around the complex and it has nothing to do with owners showing up at AGMs or EGMs. It has to do with the EC simply not getting it done.

My place is perfect. I like the layout. I like its position. It is enough room. Close to what I need to be close to (family, work, friends, facilities). Far enough away to still be a bit "country" whilst istill being well within the reach of the city. If the place was well maintained and ran well, I would stay until I walked out of here on a zimmer frame to the old folks home, which conveniently has opened up just down the road.

So another night considering my options. Thanks again Chris for that advice. It may well be worth at least talking to a lawyer about it. Then see what to do next. But it ally shouldn't come to this. It should be compulsory for an EC go address issues of maintenance.

IBC
Sponsor
19/08/2012 - 7:19 pm
Member Since: 29/06/2012
Forum Posts: 52
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Hi,

I will stick my neck out again.

I think you have got the action plan right, but may I suggest that it would be better to have your demands put forward by a Lawyer. First it would be better to get some proper advice so as to understand your options fully and secondly I wold suggest that the EC and OC will take you much more seriously if your concerns are articulated in a legal demand letter.

The lawyer that comes to mind is Suzie Broome of Makinson & d'Apice Lawyers, Suzie only acts for OC and Owners and has a wealth of experience in similar matters, why not give her a call in the first instance.

Best to you.

struggler said

What to do, what's to do?

After a sleepiness night considering my options thought I would put it to my fellow flat chatters. What do you think I should do or what would you do in m y position?

A brief synopsis – an EC who do not get around to doing any work, a complex that is need of repair, a complex that is full of people who don't know what has been happening behind the scenes (nothing) and just think someone else is getting the work done.

So do I demand a time line of works from the EC, quoting the relations sections of the act (that quite frankly I don't believe they would know what the act is) and tell them to produce this in a week? An EC that has meet discussed and organised quotes should be able to produce such in a week. Then tell them if they do not produce this I will take the matter further, advising their actions are sufficient to be found dysfunctional and again quote the relevant act? Do I leave a note for all resident owners telling them the EC has yet again not arranged any works and that if they want action they have to tell them to get on to it? Otherwise they will produce more quotes for the same works at the next AGM for the third year in a row? Or should I do both?

Any input or encouragement would be welcomed?

Chris Mo’ane AIAMA, MASBC-CPC -- GMD Integrated Consultancy Group -- Building Consultants, Engineers and Strata Consultancy -- Principal Sponsors OCN, -- Corporate Members SCA, FPA -- Email enquiries@ibc.net.au
FlatChatFan
Sydney NSW
Flat(chat)Mate
19/08/2012 - 8:34 am
Member Since: 07/08/2011
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struggler said
What to do, what's to do?

After a sleepiness night considering my options thought I would put it to my fellow flat chatters. What do you think I should do or what would you do in m y position?

A brief synopsis – an EC who do not get around to doing any work, a complex that is need of repair, a complex that is full of people who don't know what has been happening behind the scenes (nothing) and just think someone else is getting the work done.

So do I demand a time line of works from the EC, quoting the relations sections of the act (that quite frankly I don't believe they would know what the act is) and tell them to produce this in a week? An EC that has meet discussed and organised quotes should be able to produce such in a week. Then tell them if they do not produce this I will take the matter further, advising their actions are sufficient to be found dysfunctional and again quote the relevant act? Do I leave a note for all resident owners telling them the EC has yet again not arranged any works and that if they want action they have to tell them to get on to it? Otherwise they will produce more quotes for the same works at the next AGM for the third year in a row? Or should I do both?

Any input or encouragement would be welcomed?

Struggler you have tried hard, in fact you seem to have given your all to the cause, but unless you think your location is the absolutely best place in the city/state/country to live, maybe it is time just to tart up your place, put it on the market, and try to get a peaceful life.

Why not start looking around at places now.  If it is in Strata, you know what to look for before going there.  If Torrens Title, then even though more expensive, maybe by the time the majority wake up where you are currently living, the special levies needed may make the extra cost of a house affordable by comparison.

The only problem, if you go to a house, we may not have the benefit of your experience and wisdom on this forum. Cry

struggler
NSW
StrataGuru
19/08/2012 - 7:18 am
Member Since: 02/11/2010
Forum Posts: 449
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What to do, what's to do?

After a sleepiness night considering my options thought I would put it to my fellow flat chatters. What do you think I should do or what would you do in m y position?

A brief synopsis – an EC who do not get around to doing any work, a complex that is need of repair, a complex that is full of people who don't know what has been happening behind the scenes (nothing) and just think someone else is getting the work done.

So do I demand a time line of works from the EC, quoting the relations sections of the act (that quite frankly I don't believe they would know what the act is) and tell them to produce this in a week? An EC that has meet discussed and organised quotes should be able to produce such in a week. Then tell them if they do not produce this I will take the matter further, advising their actions are sufficient to be found dysfunctional and again quote the relevant act? Do I leave a note for all resident owners telling them the EC has yet again not arranged any works and that if they want action they have to tell them to get on to it? Otherwise they will produce more quotes for the same works at the next AGM for the third year in a row? Or should I do both?

Any input or encouragement would be welcomed?

struggler
NSW
StrataGuru
18/08/2012 - 7:15 pm
Member Since: 02/11/2010
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Thanks for your reply cbf. The change to the new sm was approved at an EGM in June. Notice to terminate previous sm was given in March. Old sm than told EC in May that agreement finished at end of June.

So cbf are you saying that old sm would not or could not send out all our info without receiving the signed agreement for the new sm? I would have though that you send of new agreement to new sm then on receipt they ask old sm to pass on details? Not the case? I hope to get more details about all of this.

The agreement was only faxed off yesterday morning after the shamozzle about the unit for sale. The sale did end up going through by the way.

Nevertheless there isnt there a responsibility of the EC to notify the owners/residents about what is going on? After the EGM, I believe they should have written to all and advised who to contact about matters until what date. That is contact the old sm until further notice. Then tell all that new sm is in force from next week or whatever. But nothing. We have had no idea. I thought we were under the new sm. I contacted them but they hadn't heard of us. And I bet we don't hear anything from our EC.

I rang Fair Trading who said that collectively the actions of our Ed are grounds to find them dysfunctional. And then today I find that one of the EC is using a visitors car spot to park their surf ski!!!!! Together with the lack of maintenance which I have previously outlined in various posts, we need someone to do something if only so I can sell up and get out!

But you are right cbf when you say the inaction by all. It is the complacent, lazy owners of this complex who walk around with blinkers on and don't ask or follow up themselves. But they want everything taken care of and all to be perfect with no input from themselves. I am the only one who seems to be aware and annoyed and wanting to see some action, who has noticed that nothing has been done despite the promises of the EC and who wants to make some noise.

considerate band fair
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17/08/2012 - 9:13 pm
Member Since: 14/12/2010
Forum Posts: 168
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Hey Struggler, I sympathise, but gotta say there is some inaction by all. Don't doubt your EC is incompetent. But really there is only one place for your files to be, with the previous SM. If the new agreement has not been signed files cannot be sent to anyone.Legally. When the agreement is approved by the OC, files will be sent to new agent. The OC needs to approve not the EC. EC are not decision makers for CP nor responsible re this. This should have been decided at AGM and the SM should have authority to sign off on OC behalf then. All financials should be at the current/previous SM until legalities are confirmed. So can be viewed.The onus should fall on your previous SM as they should still hold files and provide access to until the new agreement is signed. So badger them. Probably not what you want to hear, sorry.

Cheers, Best of Luck,

CBF Confused

IBC
Sponsor
17/08/2012 - 7:47 pm
Member Since: 29/06/2012
Forum Posts: 52
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Dear struggler,

Thanks for your kind words, I hope my contributions are of some help. Best with your situation, I try to give the benefit to all, but sometimes EC just need a nudge and sometimes lot Owners. Strata is all about working togather, but at times it's a big ask. Many Thanks.

ckquote>struggler said

Chris, just want to thank you very much for not only your words of wisdom on this matter, but also for your company's sponsorship of this forum. Without both, would be very hard and time consuming to find such info to know what actions are available to take. Not only for me but for all the flat chatters you have advised.

Am considering leaving a note for owners. They are totally unaware of anything that is happening at the moment. Unfortunately this is not only the fault of the dysfunctional EC, but the "it's all someone else's problem" attitude to living in strata that owners here. I have been concerned for months but, as I have posted previously, it seems to be only me who notices or pays attention and it is therefore only me who wants to see something done. The others walk blissfully through the complex, not thinking that their indifference affects them. They walk past a broken post or light and don't report it because that is what the EC do. And iwith an EC that does nothing when the problem is pointed out to them, then something has to give. I need owners to get angry and get aware and be concerned.

Chris Mo’ane AIAMA, MASBC-CPC -- GMD Integrated Consultancy Group -- Building Consultants, Engineers and Strata Consultancy -- Principal Sponsors OCN, -- Corporate Members SCA, FPA -- Email enquiries@ibc.net.au
struggler
NSW
StrataGuru
17/08/2012 - 8:00 am
Member Since: 02/11/2010
Forum Posts: 449
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Chris, just want to thank you very much for not only your words of wisdom on this matter, but also for your company's sponsorship of this forum. Without both, would be very hard and time consuming to find such info to know what actions are available to take. Not only for me but for all the flat chatters you have advised.

Am considering leaving a note for owners. They are totally unaware of anything that is happening at the moment. Unfortunately this is not only the fault of the dysfunctional EC, but the "it's all someone else's problem" attitude to living in strata that owners here. I have been concerned for months but, as I have posted previously, it seems to be only me who notices or pays attention and it is therefore only me who wants to see something done. The others walk blissfully through the complex, not thinking that their indifference affects them. They walk past a broken post or light and don't report it because that is what the EC do. And iwith an EC that does nothing when the problem is pointed out to them, then something has to give. I need owners to get angry and get aware and be concerned.

IBC
Sponsor
16/08/2012 - 8:38 pm
Member Since: 29/06/2012
Forum Posts: 52
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Hi Struggler,

Sometimes I get negative feed back when I mention going to the CTTT but if what you have been posting is only half true which I am sure it is, then the only hope you may have is seeking the compulsory appointment of an administrator for your scheme.

Here are some pointers;-

1) To be able to have the CTTT consider orders to appoint an Administrator (Compulsory Strata Manager) you need to convince the Adjudicator that the OC is dysfunctional, which in your case should be reasonably easy.

2) Whoever makes the application, gets to choose the Strata Management Company and the Strata Manager, so make sure you ask around and interview one or two and choose one that can sort things out

3) Get a solicitor to help with the application as in doing so you can define what authority will be given to the Administrator (Compulsory Strata Manager) and the issues to be addressed.

The only down side is you need to be aware that you and the other owners may well lose all control of the OC. Appointments are normally for 12 months with the aim of the CTTT to see the Administrator (compulsory SM) to have any maintenance work to the scheme carried out (section 62), insurance etc in place required under the SSM Act and generally get the OC back on its feet. If the Administrator can do this sooner than 12 months they will normally hold an EGM and hand the scheme back to the owners (normally the Administrator will offer to stay on as the SM) if they can't get the OC in order within 12 months they can seek an extension.

We have worked under many CTTT appointed Administrators and if you take time to find an experienced one it can result in the OC being put in a better position for all Owners.

A last word of warning to all, consider carefully before making an application to the CTTT to appoint an Administrator (Compulsory Strata Manager) As sometimes what you wish for can come back and bite you, as you may well lose any control. I can't suggest strongly enough that you seek some legal advice first, the better the application is detailed in my opinion the better the outcome will be.

Hope this helps.

PS Just a word on EC members having the attitude that they are Bullet Proof as the Office Holders have insurance coverage, let me tell you that they are in for a big surprise. The Insurance coverage is to cover those EC officers who carry out or attempt to carry out their honorary position with due diligence and meeting their duty of care. We see far too often where insurers are able to get out of coverage because the committee has not met Duty of care etc which leaves the OC to meet any cost and/or with the committee members facing litigation with no Insurance coverage. The point is if you get on an EC you have a responsibility to manage the scheme in compliance with the SSM Act and others and in line with a reasonable duty of care.

Chris Mo’ane AIAMA, MASBC-CPC -- GMD Integrated Consultancy Group -- Building Consultants, Engineers and Strata Consultancy -- Principal Sponsors OCN, -- Corporate Members SCA, FPA -- Email enquiries@ibc.net.au
struggler
NSW
StrataGuru
16/08/2012 - 5:25 pm
Member Since: 02/11/2010
Forum Posts: 449
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As my complex spirals further and further down the drain pipe of strata, thought I would share the latest.

A solicitor acting for someone buying here enquirer about financials. Old SM said all our paperwork sent on to new SM. New SM surprised as they are not managing us. Appears that our EC hasn't managed to get around to signing a new agreement form yet. I mean has only been a few months since the old agreement lapsed.

So their inaction could affect the sale. No one knows where documents are, apparently we don't have a managing agent. Can individual EC members be held accountable for an out of pockets due to this? Oh wait, they're covered by insurance so they dont have to worry about anything. And that is why we find ourselves in this situation. The EC don't worry about anything, do anything or get around to anything because its all ok they're covered.

Now do you believe me that we are up the proverbial creek without a paddle? And do you see why I hope for a ray and light on this forum whilst scanning the real estate pages for an escape?

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