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  • #8822
    Ancestor
    Flatchatter

    s.45 of the SSMA is not always used to protect the strata – it may be used as a vehicle of deterrence, punishment or sheer vindictiveness. Take the case where an Executive Committee, firmly in control with a swag of harvested proxies in its pocket, issues a s.45 notice for breach of a by-law, alleging that a lot owner’s communications with the committee were offensive and embarrassing.(No obscenities or insults were involved). The notice warns that action could be taken if the alleged offence was repeated.

    This comes after a long period in which the committee has writhed in discomfort from the criticisms of the owner, and has spent thousands of dollars in legal fees trying to find a way to silence him. The owner institutes an adjudication in an effort to have the s.45 order against him rescinded, and lays out in great detail the persecution and defamations he has suffered as the result of his efforts to get the committee to obey the Strata Act.

    The adjudicator dismisses the application, finding it “misconceived” because all the lot owner had to do was a) ask the committee to rescind the order, and if it refused, b) ignore it. The adjudicator had no “declaratory” powers to order the committee to rescind. If and when the lot owner breached the order by allegedly offending again, the committee could take action under s.203, and all the arguments the lot owner put before the adjudicator could then be used in his defence.

    Problem. The SSMA – which under s.45 permits a notice of by-law breach to be issued against a lot owner, cannot be challenged under s.138 until or unless the committee cites him for an further alleged breach. The pejorative, even defamatory nature of the s.45 order remains on the strata records, unfairly to the disadvantage of the lot owner. 

    Is the adjudicator correct? Does he have declaratory powers? If not, how could a dispute like this be resolved? What is the use of s.138 which says that: “An adjudicator may make an order to settle a dispute or complaint about a) an exercise of, or a failure to exercise, a function conferred by or under this Act or the by-laws in relation to a strata scheme.”

    Seems pretty clear, doesn’t it? Or is this another hole in the Strata Act?

Viewing 6 replies - 1 through 6 (of 6 total)
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  • #18479
    Ancestor
    Flatchatter
    Chat-starter

    Jimmy T’s comment is a very sensible and sound summation. What the discussion has opened up is the difference between the by-law complained of, and the standard model bylaw 6 of Schedule 1. As it happens, the reference to “common property” is absent also from bylaw 7.1 at the heart of the Franks case in the Supreme Court which I quoted, and might have precedence value in any challenge to the adjudicator’s decision.

    The adjudicator determined that he did not have “declaratory powers” to grant any of the orders sought in relation to the NTC for alleged breach of a bylaw. However in the Franks case, the Adjudicator had no problem in making an order that pursuant to s.138 “the respondent shall not use language or behave in a way that is reasonably likely to offend or embarrass another owner or occupant of the strata scheme or their visitors.”

    So, one adjudicator declined to use s.138 to resolve a dispute; another made an order to comply with exactly the same bylaw terminology. Question – Is the essential difference that one was asked to resolve a dispute at the initiative of an owner on whom a NTC had been issued, while the other was responding to a complaint by the owners corporation, alleging that the owner had breached the bylaw? (There was no mention in the Supreme Court report of the case that a NTC had been issued before the OC applied to the adjudicator for orders). Is the difference significant?

    When is a dispute not a dispute? Finally, is this really a question of law, or the personality of the adjudicator?

    #18476
    Jimmy-T
    Keymaster

    As we know, hindsight has 20-20 vision but I think if anyone else encountered this and wasn’t happy that their alleged breach was on the record and unchallenged, I would be tempted to recommend that they responded by repeating the allegedly “offensive” language and challenging the EC to either take them to the CTTT or issue an apology and withdraw the Notice To Comply.  

    At least that way there would be either a resolution at the CTTT or  a record of the EC’s failure to respond.

    I actually think this by-law is way too loose in its wording to have any legal basis and, although there are no Freedom of Speech laws in Australia, I would think that the question of taking offence lies too much within the potential for any given person to be offended to have any real weight.

    For instance, if someone at an EC meeting made a comment that I was a typically tight-fisted Scotsman, some might find that amusing while others, especially Scots, might consider it a racist comment (not without reason).  Is it offensive language – well,it is to anyone who’s offended by it. (I wouldn’t be – but then my tight fist is multi-functional.)

    To take another example, if someone says I made a stupid mistake, and I had, I might take offence on the basis that, while the mistake was mine, I resented any inference that I am stupid. I wouldn’t pursue that because I’m not THAT stupid, but I know people who are less insensitive than I, who would be offended.

    This is all part of the cut and thrust of daily politics, which is what being on and dealing with ECs is. 

    To get back to the original question: should the adjudicator have made a ruling under Section 138 which, according to the CTTT application form is to “To resolve disputes or complaints”.  This is a catch-all section for disputes that aren’t covered by other specific sections of the Act.  It also specifically refers on the form to ..

    … the general power of an Adjudicator to settle a dispute or complaint about the operation, administration or management of a strata scheme, or functions conferred or imposed. 

    Examples of general disputes or complaints include the following: … Compliance with by-laws 

    So, regardless of what the plaintiff could or should have done, it was within the remit of the CTTT adjudicator to rule on this.  That they chose not to do, left the matter open to an appeal at either a hearing or at the District Court.

    However, right now, the simplest thing to do is, if you feel you have been wrongly maligned and you want this on the record, to go back to the  point I made at the beginning. Send a letter denying that you have breached the by-law, repeat the allegedly offensive language and defy them to either take you to the CTTT or withdraw and apologise. My bet is they will do neither but at least that’s on the record.

    Finally, the current ‘model’  by-law in Schedule 1 is 

    An owner or occupier… must not use language or behave in a way which might offend or embarrass others using common property.

    Note the words “using common property” which are not in the by-law allegedly breached.  If you had the time and the inclination you could run a case at the CTTT under Section 159 “to invalidate a by-law because the Owners Corporation did not have power to make it” on the grounds that its terms are too broad and therefore conflict with other areas of the Act that allow owners to express their opinions verbally and in writing under a variety of circumstances.

    But please bear in mind that I am not a lawyer and you would be well-advised to talk to someone who is before taking any of the preceding advice. 

    #18471
    Ancestor
    Flatchatter
    Chat-starter

    Hi. Thanks to all for their comments. First:

    The relevant by-law is similar to the standard and says merely: “An owner and occupier must not use language or behave in a way that might reasonably offend or embarrass another owner occupier or their invitees.”

    As explained, this was seized upon (under legal advice) as the only way of silencing a critic. The problem was that it was stretching a long bow. It’s reasonable to hypothesise that the by-law was meant to curb obscene, fillthy and grossly insulting language, which might be offensive to the target and embarrassing to people who overhead such remarks. Merely to allege in an email that an executive committee falsely claimed a democratic justification for its actions by producing proxies obtained from “indifferent, unsuspecting or misinformed” owners does not meet the test implied in the bylaw.

    54% of the owners in that strata are of immigrant ethnic background. The vast bulk of them take no interest in strata affairs. Many have limited English and culturally, shrink from robust disagreement and debate. In the event, it was established that some had been given false information about the subject under discussion, and various devices (including pressure) were used to obtain their proxies.

    It’s all very well to say a Notice to Comply has no force until activated by further action. The problem for the individual is that the s.45 notice stands on the strata record as a judgement, without right of reply or challenge. The action in adjudication was an attempt to clear his name, seeking a finding that the words used did not come within the meaning of the bylaw. It was a scurrilous use of a legalism to pull the stunt of “declaratory power” as an excuse for not digging down to solve the dispute.

    Now compare that with the situation in NSWSC 341: Franks v Consumer, Trader & Tenancy Tribunal (2013);

    The Owners Corporation of SP70672 took action in the CTTT under s.138 against the owner Phillip Franks for breaching exactly the same by-law: “Using language or behave in a way that is reasonably likely to offend or embarrass another owner or occupier or their visitors.”

    It is not necessary to go into the reasons why it ended in the Supreme Court, but the offences alleged included a long string of complaints by various owners over time, including physical threats and bullying. The owner repeated the action after being served with a notice to comply with the bylaw.

    The difference was that the adjudicator had before him a complaint from the OC to act against an owner, and therefore he had no difficulty at all in investigating in detail the complaint and making findings and orders.

    My point is simply, that claiming not to be able to give “declaratory relief” is a cop-out, a side-step to avoid having to get down into the details of the complaint, with the result that the dispute remains unresolved, and justice becomes a joke. While the CTTT Act and the SSMA pretend to operate at a layman level, with the right of personal approach to the Tribunal, the reality is that these vehicles operate on an essentially legalistic basis; an unrepresented individual is highly vulnerable and will be cut down smartly by an adjudicator or tribunal member. 

    FWIW the owner has written to the OC as suggested, ignoring the notice. It’s even probably the issue will not re-appear, but it is completely cynical  that the adjudicator would write that the evidence put forward in great detail in support of the complaint could well be used in defence should the OC take action to enforce the order to comply. Since the issue is really one of trying to suppress criticism and dissent – but not in language that is either offensive or embarrassing – who knows where it will end?

     

     

     

    #18431
    Whale
    Flatchatter

    When I first read Ancestor’s post and his comments that the executive committee considered his communication “offensive and embarrassing”, I suspected their allegation was that he’d beached Model By-Law 6 which states:

    An owner or occupier of a lot when on common property must be adequately clothed and must not use language or behave in a manner likely to cause offence or embarrassment (my emphasis) to the owner or occupier of another lot or to any person lawfully using common property.

    I too am curious so I’ll be interested to read his response, but I hope he had his clothes on when he communicated with the committee. 

    #18430
    Jimmy-T
    Keymaster

    @scotlandx said:
    The short answer is no, an adjudicator does not have jurisdiction to grant declaratory relief.  They can make orders to settle a dispute or complaint, but that isn’t declaratory. Re the notice to comply, what by-law did they say was being breached?  Was it in relation to your communications, because I can’t think of a by-law that relates to that.

    Scotty has makes two very good points here – and the second one reveal a miconception about Notices To Comply.

    An NTC is not a fine, it simply states that the Owners Corp (as represented by the EC or the strata manager) believes you have breached a by-law by your action and warns you that if you continue to breach the by-law, then you may be subject to further action and a possible fine.  It has to state the by-law that it believes you have breached.

    Thus, as the CTTT adjudicaor said, if you don’t believe you have breached this by-law the easiest way to deal with this is to ignore the NTC and let the Owners Corp make the running on proving their case.  You don’t have to prove them wrong until that happens. If you feel the need to respond, then you can send them a letter saying that you don’t feel you have breached the by-law and, consequently,  you will not be changing your behaviour.

    Like Scotty, I am curious to know what the by-law was that they claimed you had breached.  There is no constitutional right to freedom of speech in Australia but I’ve never heard of any by-law that prevents owners from communicating with the EC or other owners.

    Let’s see a copy of the by-law that you are supposed to have breached – to satisfy our curiosity, if nothing else.

     

     

    #18429
    scotlandx
    Strataguru

    The short answer is no, an adjudicator does not have jurisdiction to grant declaratory relief.  They can make orders to settle a dispute or complaint, but that isn’t declaratory.

    Re the notice to comply, what by-law did they say was being breached?  Was it in relation to your communications, because I can’t think of a by-law that relates to that.

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