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Mediation - what can I expect and should I take a support person?
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Panamenke
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23/09/2018 - 8:17 am
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 I own a townhouse in a complex approximately 28 years old. The complex was built in 2 separate lots. There are 23 houses, 21 are owner/occupiers.

I bought my house in 2007 so have been here 11 years. The Strata committee is a gang of bullies who are all original owners I.e. they bought their houses when the first lot was sold. They are all retirees and have lots of time to gossip, bitch and backstab. Ok now that’s off my chest????

I have ruffled their feathers over the years by calling out the cliquish behaviour e.g. they approve work for each other quickly, the Chair contracts his own handyman and builder when his house needs work, the rest of us have to get 2 quotes etc.

We had a change of agent in 2014 when I discovered the previous agent had ripped us off for close to $20000 over the years. The Strata committee was upset with me because this agent had formed a cosy friendship with them over the years and turned a blind eye to their shenanigans.

The new agent was appointed late 2014 and for the first 16 months did a brilliant job. Unfortunately the agency decided to give us another agent who can only be described as laissez faire. Now, because I am perceived as being the troublemaker I have been punished by lengthy delays in getting repairs done to my house. I reported cracks in the internal walls and was told by the secretary to “go away”. I then sent an email to the agent reporting the cracks, tree problems, and other repairs and sent a monthly email asking for action. This was for over 3 years!!! 

In May this year the membrane in my shower unit eroded causing major water damage to the ceiling below (laundry). I reported it to the agent who did the right thing and treated it as an emergency. A plumber was sent out the day after I reported it and he completed a report and a quote to waterproof the shower, replace the tiles to 2 levels, replace the stack pipe in the plumbing and replace the laundry ceiling, cornices, and water proof this and paint the ceiling. The agent sent the quote to the Strata committee and they wouldn’t approve it as, in their opinion, it wasn’t an emergency. Their view was because I have an ensuite this didn’t count as an emergency. I haven’t been able use the laundry and have been going to a laundromat so I thought it was an emergency. Anyway they asked for second quote so the agent got a quote to mega seal the shower. I asked him how that can fix the plumbing and laundry ceiling. His response was “we will worry about that after the shower is fixed”. I questioned the point in megasealing the shower if the tiles would have to be pulled up for the plumbing – no response. I asked him if the laundry ceiling would be covered by insurance since the ceiling was ok until the shower flooded it. His response was “it may or it may not – that’s up to the committee”. So, to keep a very long story short I had a quote for megasealing and then one of the committee showed some common sense and realised I would have to get 2 quotes for plumbing, 2 quotes for the ceiling etc. and this would be onerous on me, so long story short, 12 weeks after I reported the damage they finally approved the original quote!

There is quite a history here and based on patterns of delays in getting repairs actioned in a timely manner I lodged a complaint with Fair Trading who said it has to go to mediation. The mediation date has been set however I have not been advised who will be attending from the other side I.e. if it will be just the agent or if a committee member will attend, if so how many. So the question I am asking is – can anyone tell me what expect at the mediation session? I have not heard great reports about Fair Trading mediation so want to go there knowing what to expect. I have all my records to prove that I wait for unreasonable time frames to get repairs actioned and the outcome I want is to be treated fairly and reasonably with repairs actioned in a timely manner. Should I take a support person? Will the mediator allow me to demonstrate the petty behaviour of these people, of course, without being petty myself? What happens at mediation?

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Jimmy-T
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23/09/2018 - 4:07 pm
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Just to be clear – a mediation is not a ruling or an adjudication.  It is an attempt to reach agreement between two parties on a way forward that avoids further strife or litigation.

My first question is, if the committee has agreed to fix the bathroom, what exactly are you seeking from the mediation?

The committee can send anyone they want … or no one.  However, as the litigant, you must attend as you require an attempt at mediation as a prerequisite to taking the case to NCAT.

Yes you can take along anyone you want for support but expect to be asked to speak for yourself, if at all possible.

Things to bear in mind are that if you reach an agreement at the mediation, you want something in writing from them that includes a deadline.  If they fil to abide by that, you can then pursue the issue through NCAT.

By the way, for anyone else who has a problem with their committee delaying fixing  common property,   the committee’s decision not to fix the membrane because it wasn’t an emergency was entirely bogus.  An owners corporation as represented by the strata committee has a responsibility to fix common property and they don’t get to choose whether or not there’s a good enough reason for doing it.

In a similar situation, I wouldn’t get into arguments about who got quotes for this or that  or any of the rest of it.

I would just say over and over until they were sick of hearing it: “Under Section 106 of the Strata Schemes Management Act 2015, an owners corporation for a strata scheme 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. Also 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.”

Just for occasional variety, I might throw in that in the 2006 decision of Seiwa Australia Pty Ltd v Owners Strata Plan 35042, His Honour Justice Brereton explained:“That duty is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair.”

For further ammunition, consider quoting this, which is basic strata law but is summarised elegantly here in the Turnbull Bowles lawyers website:

When it comes to undertaking maintenance and repairs, the Owners Corporation must consider the sufficiency of the intended scope of work and whether it will suffice to meet the duty which the legislation imposes. The Owners Corporation must focus on the key phrases “maintain and keep” in respect of the common property and “renew and replace” in respect of any fixtures or fittings comprised in the common property.

In addition to the decision in Seiwa referred to above, there is ample case law to support the proposition that the Owners Corporation cannot adopt a watered down approach or adopt a lesser scope of works, if to do so, would mean that the common property is not being properly maintained and kept in a state of good and serviceable repair. The Owners Corporation must replace like with like.

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Panamenke
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25/09/2018 - 3:32 pm
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Thanks Jimmy for your reply.

 I did check with OFT mediation services if mediation was worthwhile since the committee ended up approving the work and their advice was to continue with the mediation. As I said, there is a history here with getting the Strata Committee to approve work orders and it has taken over 3 years on average to get work approved. The bathroom and laundry is still a problem since the company contracted to do the work did a shoddy job. There are gaps in the grouting, they put the shower screen back to front and damaged the runners, the laundry ceiling has obvious marks and bumps where the joins are (they were supposed to replace the whole ceiling and didn’t), and the list goes on.

thanks Jimmy, for your sage advice.

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