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Compensation to lot owner
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TruleEConcerned
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13/07/2018 - 10:28 am
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Good day,

Renovation by the OC and another lot drove my tenants out half way through a 1 yr lease.
I took the tenants to NCAT seeking payment of the Break Fee the tenants agreed to upon signing the lease, but NCAT ruled that the noise from the renovations rendered the premises as “uninhabitable” and therefore the lease could be terminated without payment of the Break Fee.
NCAT found I did not breach any Act and suggested I take action against the OC and the lot owner whose renovations caused my tenants to break the lease.
It took 6 months to secure a new tenant. Six months of lost rent.
 
My questions are:
 
1. Do I have a case in trying to claim the lost rent from the OC and the other lot?
2. What is the venue for such action? NCAT? Court?
 
Note my initial approach to the OC was met with a denial they did anything wrong.
 
Thanks for any advice/recommendations.
 
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13/07/2018 - 11:44 am
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It seems strange to me that some people still think living in strata means you have to put up with whatever inconvenience occurs because someone is enhancing the value of their property. 

The renovator is responsible for the actual disruption and the Owners Corp is responsible to some extent for allowing the work to go ahead in a way that caused more disruption than it should have.

You have a clear and definable financial loss from this, so why not go for it. 

The best advice I think anyone can give at this stage would be to seek legal advice. 

Talk to an experience strata lawyer right away – and our sponsors Sachs Gerace Broome are particularly strong in this area. Give them a call and tell them we sent you.

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TruleEConcerned
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19/07/2018 - 9:33 pm
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Hi Jimmy

Thanks for your reply and sorry I am late in responding. I just read your post.

A few days ago, before reading your post I contacted two law firms. One did not address my questions. The other, Sachs (that I approached after seeing their advertising on your website) indicated:

1(a). I have a case against the other lot but not the OC;

1(b). I have no case against the OC because the OC is bound by the Strata Act to address repairs etc. Although it was not made clear to me why I must wear the economic loss suffered from the OC’s work (note there were two renovations: the OC repaired a balcony and another lot owner comprehensively renovated his unit)

3(a). As to action against the other lot, the venue I was told is court and not NCAT;

3(b). The cost of court action is anything from $10k to $15k.

3 (c) Even if I win all my $18k I seek, I can recover no more than say $4.5k and that is if I win.

I wonder if another lawyer would see things differently. That is, charge less or take the case on contingency or take the matter to NCAT.

After all, it doesn’t make sense to me to spend up to $15k to maybe win $18k.

Any thoughts?

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kaindub
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20/07/2018 - 6:58 pm
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Yeh

Even when you win a court case you lose.

However if you get a good lawyer, he will be able to write the threatening letters, initiate a case and then use mediation to get you a result. At mediation you won’t get  everything you want, but the costs are cheaper. 

If mediation does not work and you take it to court, you will get more of your costs returned if the court awards you more than you were prepared to settle for.

But at then end of the day , decide whether you want to fight for the principle ( a sure way to do your dough) , whether you can just wear the loss, or whether a mediated settlement will suit you.

( Also maybe one of the lawyers on the forum can kick in. But generally you can expect to get back about 80% of your legal costs. UNLESS your  lawyer is charging to send you birthday and Christmas cards. )

Robert

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TruleEConcerned
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25/07/2018 - 4:19 pm
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Thanks to both of your replies.

As to costs, it is my understanding from attending NCAT a few times that costs are most often NOT awarded to either side, unless something out of the ordinary occurrs as Jimmy indicates (foot dragging etc).

If I take the matter to court I understand that some of my costs will be awarded to me if I win and the quantum of the award is a function of how much compensation I receive.

This means, correct me if I am wrong, my out of pocket expenses are far lower if I find a cheaper lawyer (one whose fees and court fees are in the 4 digit park), rather than the 10-15k in costs, which is what I was quoted.

Kaindub: You ask if I want to fight on principle. The answer is “yes”. Principally my standard of living has tanked with $18k in rent lost because a neighbour renovated, sold at a profit and drove my tenants out like cattle to the abbatoir. Oh, he didn’t even bother replying to my solicitor’s letter of demand.

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25/07/2018 - 5:53 pm
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I was just flicking through some NCAT Appeals decisions (because I am a sad person) and discovered one which was basically about an owner who had lost rental income because of the owners corps failure to fix a leaking roof.

He was awarded damages, but not as much as he wanted, for all the reasons he claimed.

Now, since neither side won everything they wanted, they were ordered to pay their own costs – so be careful about asking for something the Tribunal or a Court won’t agree to.

Getting back to the cost of taking action against your neighbour I wonder if the high costs are because SGB Lawyers said it was a court case rather than a Tribunal hearing. If so, you may well get a greater proportion of your costs back, if you win. 

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TruleEConcerned
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27/07/2018 - 5:19 pm
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SGB advised that:

1. Court is the option because I have no case against the OC which could be heard at NCAT. The implication is that NCAT doesn’t hear claims for the compensation I seek;

2. The law compels the OC to repair that which needs to be repaired and if a loss is sustained by a lot owner due to the OC ignoring its obligation to repair say a leak, then the loss can be claimed by the lot owner from the OC at NCAT. I understood that to mean that there is no mention in the Strata Act allowing me to chase the OC for compensation/damages sustained by me following the OC doing its job;

3. If I win at court, say my entire claim of $18k, I should expect costs awarded to me to be no more than 25% of what I win i.e. $4.5k. So in my mind, the cheaper my legal counsel, the less out of pocket my cost. For instance, legal fees of $7k and I win $16k, the court will possibly award me 25% or $4k, so my out of pocket is $3k. SGB indicated costs of $10-15k. Of course I have no idea what part of that is SGB’s costs and what part is the court process’ costs are;

4. If I want to go after the other lot for my economic loss then the venue is a court.

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kaindub
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28/07/2018 - 12:26 am
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Truleconcerns

apart from NCAT, most courts awards costs to the winner of the case.

Costs are awarded at the discretion of the court and can follow two methods.

Indemnity costs – pretty much all the money you spent to proceed your claim can be reclaimed from the looser. There are some exclusions but expect to get back 80-90% of your costs

Party to party costs. Your legal costs are assessed on the basis of what the court thinks is a fair price to pay for your legal system. The court applies a standard  rate for the legal work done. Expect to get less back 

However, the court can also just award a $ amount to you if the cost of pursuing your claim is out of proportion to the gal costs. This is designed to stop ltitgants using lots of expensive lawyers to wear down the opposition for a small reward.

Lawyers are like any other service one buys. The more expensive the service, the higher likelihood of a good result. Not all lawyers are equal. Just because you think you have a good winnable case does not mean the lawyer you select will get you that result. Look at your lawyers expertise and track record.

The reason I asked earlier whether you want to fight for the principle is that on your numbers, the cost of processing your action is very high in relation to the amount you are pursuing. Your lawyer should be advising you what an economical path to follow is – not just going to court.

But one in never certain when approaching a court that a) one will win and b) that costs will be awarded.

There is a long line of people who won there cases in court and yet were worse off.

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28/07/2018 - 1:46 pm
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kaindub said
Truleconcerns

apart from NCAT, most courts awards costs to the winner of the case.

Everything else in your post is spot on but I’m not sure about this statement. In the recent case concerning Colleen McCullough’s will, the judge ordered both sides to pay their own costs.  Perhaps it was because the details in the case weren’t clear cut but there was a “winner” in that her widower got the cash.

In any case, that simply reinforces your argument that even when you win, you can lose, something that’s echoed in David Sach’s post on our front page.

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