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How do I write an NCAT application?
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JonH
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18/09/2018 - 11:34 am
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Can anyone please help with advice on completing an application to NCAT.  Is there any specific way a request for an order should be worded?  Our issue involves several defects to common property – should we include them all in the one order or request separate orders eg roof leaking into our unit where the membrane is 25 years past it’s use by date is one issue.  Concrete spalling including the proper removal of magnesite and replacement of carpets that had to be lifted is another issue.  Plus others.

Should we initially submit the application for the orders with an attached overview of the situation and await whatever directions are handed down at the first hearing or should we submit the application with all the evidence attached.

Any other general advice on format of the application and presentation of evidence would also be appreciated.

I am going to present my own case and don’t want to involve lawyers.

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Sir Humphrey
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18/09/2018 - 3:36 pm
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If NCAT is anything like the ACT equivalent, ACAT, there is some understanding and tolerance extended to non-professionals presenting their own cases. An order has to be in the form that some person (which could be the OC) must do some thing by some time. 

You could write:

The applicant seeks orders that each of the following items be repaired or replaced by dates determined to be reasonable by the Tribunal, as set out below:

1) that the respondent must replace X with Y.

2) that the respondent must repair Z.

3) …

It is often useful to finish with: “Any other order that the Tribunal considers reasonably necessary or convenient to resolve the dispute.”  This is an invitation to the Tribunal to propose solutions and shows that you are entirely reasonable and flexible, seeking only a satisfactory outcome and not even a tiny bit vindictive ;-). 

At a ‘preliminary conference’ or ‘directions hearing’, the OC might accept that it can do some things by some date while it might argue the point on other items. For the things that are agreed, you should then ask for ‘consent orders’. With the assistance of the Tribunal member, if both parties agree that some thing will be done by some person by some date, you want that in writing as an order. Then, when you come back to deal with the other more difficult matters you can report whether the consent orders have been complied with.  It won’t look good for the OC if it has not done what it agreed to and was ordered to do.

Note that the Tribunal will be looking to have the parties agree to some solution and go away without taking up any more time and public resources. They won’t tell you the best solution. As long as what you agree to is accepted by both parties and not obviously illegal,  then that is what you will get, even if the Tribunal member might privately think it is not really the best outcome. If you can’t agree, and the matter goes to a hearing, then the orders you get might be what you wanted or they might not be what either party wanted. 

I hope that helps. Be prepared and utterly transparent and it is not as scary as it seems. Don’t spring surprises. Include your evidence with your application. If you have to add something later, do so as early as possible and always have a copy of any document or photo for the Tribunal member and the other parties. Copy in all parties in any correspondence, even if another party doesn’t. 

I hope that helps, 

Good Luck.

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JimmyT
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18/09/2018 - 6:59 pm
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JonH said
I am going to present my own case and don’t want to involve lawyers.  

Sir Humphrey is right, of course, but there is so much detail and technical matter involved in this that you might want to talk to one of the growing number of Strata Consultants that have sprung up recently.

These are people with strata experience and training but who are neither practising strata managers nor lawyers (and charge accordingly). 

Without making any particular recommendation or endorsement, we are aware of Strata Answers and  Nick Penny of Intensive Care Strata Solutions on NickP@Intensive-Care.com.au.  Please mention that you got the contact details here on Flat Chat. These are good people and they may be able to help for a modest fee.

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Sir Humphrey
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18/09/2018 - 9:05 pm
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One observation is that ACAT were surprisingly unimpressed by not particularly complicated though technical arguments presented with evidence by intelligent non-experts. They do seem keen to prefer the cognitive shortcut of having a credentialed expert give sworn testimony, rather than follow an argument.

So, if you are arguing that some repair or maintenance has not been adequate, it might be better to have an expert witness assert that rather than assume it is sufficient to have a straightforward but slightly technical argument from an intelligent amateur (i.e. you).  

Eg. it might be obvious to you and me that a pipe is leaking and we might think a photo showing drips would be enough but it might be better to have a licensed plumber tell the Tribunal that the pipe is leaking!

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Ziggy
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19/09/2018 - 10:29 am
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I recently went to NCAT on my own without lawyers or experts and was very apprehensive about the process. But I sought advice from NCAT itself (this you can do once you have lodged a claim) and from a strata lawyer who also gave me advice. (They did not go to the Tribunal.)

The main thing is to be really organised. I photocopied all the evidence I wanted to submit, numbered the pages then supplied an index and a chronological index of dates covering the period that needed to be discussed. I then sent the application and supporting information to the respondent via registered post three days before the hearing. The respondent sent me nothing. If that happens, and they bring something to the hearing that you have not read, you can request that it not be considered.

The other thing you should do is go to a few strata hearings at NCAT to get a feel of how things work.

The process is formal but not unbearably so.

Most importantly, get ALL your facts correct and well researched and be prepared to argue your case. I unfortunately had an OC representative (the respondent) who intimidated me before going into the hearing and then lied during it. This was so unexpected, I did not challenge it at the time because, as it was completely out of left field, I did not have the information in front of me to prove the lies.

My question here is whether I need to point this out to NCAT prior to our next hearing date.

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JonH
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19/09/2018 - 10:59 am
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Thanks Sir Humphrey and Jimmy for your advice and comments.

I have consulted a lawyer who after viewing the evidence said he thought I was well prepared but I have noted your advice re the consultants Jimmy.  I attended a day of hearings at NCAT to get a feel for it, I’ve read the sections of the act and I have a lever arch folder full of factual evidence.  My only concern is with correct presentation of the orders and evidence. The issues are many and long-winded but I believe they are straightforward and that I am not being unreasonable.

Is there anything I should put in my application to the effect that if I am not seeking legal representation that the OC can’t either?

I have an engineers remedial report from well known engineers to support the order re the leaking roof.  I have it in writing from the OC’s engineer that the membrane should have been replaced in the early 1990s although he hasn’t investigated the leaks as the caretaker told him the roof wasn’t currently leaking and he didn’t consider it necessary to look into it until it leaks again (Rosenthal judgement would suggest otherwise).  To the best of our knowledge the caretaker has no qualifications and we did not grant him access to the unit for any inspection.

Here’s more of what I’m dealing with and seeking orders on.

Repeal of a harsh and unreasonable by-lay that gives a maximum of five months for a renovation and imposes a $5000 per week penalty if exceeded.  Should the order only request repeal of that one clause?

Unreasonable refusal of a renovation by-law which seeks approvals already granted to our neighbour e.g. air conditioner on the roof and a concrete beam on the roof to facilitate removal of a supporting column (enshrined in a by-law).  The OC first wanted us to pay for half the cost of remediating the roof (the beam only takes up 10 sqm and the poor condition of the roof is not our fault), then they wanted us to pay for the common property we would have exclusive use of (we agreed to pay the same rate as others in the building with exclusive use of common property e.g. common foyer where two units have combined – which is habitable space – none have been charged), now saying removing the column will affect the structural integrity of the building (our engineers say not and the beam over the neighbouring unit has not caused any problems) etc etc.

Damages – we reported concrete spalling (in three bedrooms, all living rooms, dining room and study) in October 2016 and it took until February 2018 to commence the work and until end of July 2018 to complete.  The unit purchased in October 2016 has now been sitting empty for nearly two years.  Due to two years of spiteful and vindictive opposition we have thrown in the towel and purchased elsewhere but have been unable to rent it because it has been a construction site since the carpets were removed (by the OC) a year ago.  The OC argues that they didn’t attend to the spalling because we should have initially removed the carpets due to the fact we were going to renovate.  But they refused the renovation by-law!  The unit currently has bare concrete floors with the OC ignoring all communications regarding replacement of the carpet. Any advice on how to calculate damages or present a case for damages eg loss of rent?  I also intend to claim the cost of the two engineers reports I had to commission as the OC was doing nothing to address the issues.  We were fortunately able to live in our weekender out of town and had to pay to stay in hotels when coming to Sydney for social engagements, doctor, dentist, hairdresser etc.

Any further advice would be greatly appreciated and will also help others who might become entangled in similar situations.

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