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Strata manager has declined to mediate - go to NCAT?
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lmilne
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06/08/2018 - 2:29 pm
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I’m an EC member on our 9 person strata. I had a motion passed at the last EGM compelling our strata manager to get 3 quotes for repairs he has not wanted to address for 3 years.

It specified within a few months and that time has lapsed. dept fair trading said NCAT was the best option but wondering what this group thinks?

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06/08/2018 - 6:52 pm
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What do your other strata committee members think? Do they want to pursue this with the strata manager.  If not, your initial beef is with them. This is what the mediation form says:

Owners raising issues involving a strata agent’s management of the scheme need to apply for mediation against the owners corporation. 

Assuming a majority of the committee agree, if the strata manager is simply refusing to follow your instructions – or just not doing whatever it is you have told them to do – unless following those instructions would be a breach of the Act or some other law, then they are in breach of their contract.

So what does the strata management contract say about their duties?

If they are in breach, you can apply to NCAT under Section 72 (below) to have the contract terminated. Now, normally in most NCAT actions you would need to go to mediation first. However, this is where it gets complicated.  Here’s what it says on the Fair Trading mediation application form:

There is no jurisdiction for an owners corporation to mediate with its strata managing agent – except for seeking to recover its records and other property from the agent upon termination of the agent’s services. 

So, in my reading, that would mean you go straight to NCAT.  Where on their application form it asks if you have tried mediation and if not, why not, you’d quote that line.

 

SSMA Section 72   Strata managing agent and building manager agreements may be terminated or varied by Tribunal

(1)  The Tribunal may, on application by an owners corporation for a strata scheme, make any of the following orders in respect of an agreement for the appointment of a strata managing agent or building manager for the scheme:

(a)  an order terminating the agreement,

(b)  an order requiring the payment of compensation to a party to the agreement,

(c)  an order varying the term, or varying or declaring void any of the conditions, of the agreement,

(d)  an order that a party to the agreement take any action or not take any action under the agreement,

(e)  an order dismissing the application.

(2)  If the Tribunal makes an order terminating the agreement, the Tribunal may also order the strata managing agent or building manager to return to the owners corporation, within the period specified in the order, any documents or other records relating to the strata scheme that are in the possession of the agent or manager.

(3)  The Tribunal may make an order under this section on any of the following grounds:

(a)  that the strata managing agent or building manager has refused or failed to perform the agreement or has performed it unsatisfactorily,

(b)  that charges payable by the owners corporation under the agreement are unfair,

(c)  that the strata managing agent has contravened section 58 (2),

(d)  that the strata managing agent has failed to disclose commissions or training services (including estimated commissions or value of training services or variations and explanations for variations) in accordance with section 60 or has failed to make the disclosures in good faith,

(e)  that the strata managing agent or building manager has failed to disclose an interest under section 71,

(f)  that the agreement is, in the circumstances of the case, otherwise harsh, oppressive, unconscionable or unreasonable.

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lmilne
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07/08/2018 - 9:12 am
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Hi,

Yes when i called dept fair trading i cited that part of the act – the person i spoke went and confirmed with a supervisor that I could go after the strata manager via NCAT once mediation failed and that was a better option that lodging a complaint to compel action on the motion. So i guess it will be a breach part of the act that applies – I havent called them yet to talk me though completing the application. I really interested in hearing if other have had success with this kind of action thorugh NCAT?

 

thanks for responding!

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