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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 The owner institutes an adjudication in an effort to have the s.45 order against him rescinded, and lays out in great detail the persecution and defamations he has suffered as the result of his efforts to get the committee to obey the Strata Act.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?
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