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Serial Litigant Owner
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20/11/2018 - 12:51 pm
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We are a Strata of 36 villa style houses bedevilled by a wealthy and demanding owner who mainly corresponds with the OC through a solicitor.  Attempts at discussion and mediation have proved fruitless.  He invariably takes his demands on the OC to the Tribunal without regard to cost.  He is represented at hearings by a solicitor and a barrister. over whelming the Tribunal member.

Recent Example:

The owner was granted OC permission to tile and seal an existing timber-decked balcony to a first floor bedroom.  In the course of the works the owner had an adjoining large glass sliding door assembly removed and reinstalled.  He stated that it was a necessary part of the approved works to ensure water sealing between the balcony and the building.

The reinstalled door assembly subsequently leaked rainwater into the bedroom.  The SC concluded it was owner responsibility due to his works and declined to repair.  The matter went to NCAT and the OC decision was upheld.

The owner appealed the NCAT order.  To minimise further costs to both parties the OC offered to share 50/50 with the owner the estimated $10,000 to replace the sliding door assembly.  The owner declined the offer and continued the appeal.

The appeal involved getting engineering reports from both sides and legal representation.  The Tribunal member was persuaded to the owner’s case on the grounds of the door assembly being common property.  The OC was ordered to make the sliding door waterproof.

We estimate that the owner incurred at least about $80,000 in costs.  The Strata has spent about $30,000 out of pocket plus a healthy increase in insurance premium for legal cover.  The matter of award of costs is still before the Tribunal.

This owner repeatedly seems to want to punish his fellow owners if we do not bow to his continuing demands.  It places strain on SC members and other owners.  The situation is becoming well known and our property values are suffering.

Is there any way to overcome this problem?


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21/11/2018 - 11:48 am
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You could try to have all costs for future matters allocated to the “serial litigant” on any of the following grounds, from the NCAT website:

a) A party has conducted their case in a way that unnecessarily disadvantages another party
b) A party has been responsible for unreasonably making the case take longer
c) The relative strength of a party’s case or whether the case was hopeless
d) The nature and complexity of the case
e) A party’s case was frivolous, vexatious or misconceived
f) A party has not cooperated with the Tribunal in providing a just, quick and cheap resolution of the real issues in dispute
g) A party has not followed Tribunal orders or directions
h) Any other matter the Tribunal thinks is relevant.

However, I wonder if you might be better in future applying to NCAT that each party represent themselves as, by employing highly paid lawyers, the litigant is putting the OC at a disadvantage.  

In fact, parties in a dispute at NCAT are supposed to seek leave to have representation which may be allowed under these conditions. That clearly allows the Member to say “no lawyers” – that might even up the playing field a little.

Or, you might warn the owner that you are sick of their bullying and the next time you will seek to have them declared a “vexatious litigant”  under these conditions in the Supreme Court.  It’s a long shot but it might give them pause when they consider what such an action – successful or not – might do to their reputation among their peers.

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21/11/2018 - 4:22 pm
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NCAT doesn’t automatically allow parties to be represented at the tribunal by a solicitor or barrister. As mentioned above leave needs to be sought and is intended to make NCAT hearings more accessible especially those without a lot of money.

In my limited experience parties seem to “try it on” with using solicitors first and only represent themselves if there is pushback. Tribunal members may even prefer a solicitor as the matter will most likely be presented with much better clarity and with only the relevant points raised than the average owner with a bee in their bonnet.

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