Flat Chat Forum By-laws and outlaws Current Page

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  • #52322
    AvatarLarry
    Flatchatter

    Can an Owners Corporation pass a Bylaw that recovers legal fees from any owner who applies to the NCAT for an order against the Owners Corporation ( or who applies for compulsory mediation) and is unsuccessful? Doesn’t the Tribunal decide who bears responsibility for costs in NCAT cases?

    It seems to me such a bylaw may well deter frivolous claims against the Owners Corporation but also have the effect of deterring an owner, who has a genuine and valid concern against the Owners Corporation on some matter that requires resolution at NCAT, but unless they are 100% confident of winning the case – which of course one can’t be – are reluctant to go down the NCAT path for fear of losing a case and being responsible for all costs.

    Can an Owners Corporation pass a bylaw that allows the Owners Corporation to charge an individual owner fees incurred as a result of that owner failing to allow access to their property for maintenance purposes at a designated time and date – i.e. not a mutually agreed time with the owner but a time determined by the Strata Manager or Committee?

    Its possible that an owner may have a genuine reason for not being available at the time as determined by the OC  or Committee eg hospital, family emergency etc but be slugged fees for being unavoidably absent.

    Advice appreciated.

     

Viewing 9 replies - 1 through 9 (of 9 total)
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  • #52408
    Jimmy-TJimmy-T
    Keymaster

    … from what I can gather from Jimmy’s and others’ responses, only the NCAT or a court can decide responsibility for legal costs, in effect rendering the bylaw invalid.

    I’m not a lawyer so it’s only my personal opinion that the by-law would be invalid and the only way you would find out for sure if that was true would be to test it at NCAT.

    In any case, letting owners know, by whatever means, that all costs will be pursued for vexatious, mischievous and baseless claims that were bound to fail anyway, should be enough to deter serial strata pests and hobby litigants, without putting off genuine complainants.

    I get the amout of distress that serial pests can cause to a community but I don’t think the answer is a bogus by-law.  Two wrongs don’t make a right.

    And I’m also guessing that this by-law may be there, initially at least,  to deter pests rather than bona fide complaints, and if the latter is the result, the serial pests should take a good long look at how much trouble they are causing others with their petty vendettas.

    #52398
    AvatarLarry
    Flatchatter
    Chat-starter

    Thanks Jimmy and others.

    Just to clarify, I was more concerned that a bylaw to enable to the Owners Corporation (OC) to recover legal costs from an owner would actually discourage an owner who has a valid complaint and supporting evidence against the OC. The OC has already previously lost a case at NCAT and so the bylaw could be perceived as an attempt to muzzle any future complaints against a strata committee or OC.

    An owner would be loathe to apply in future for mediation or to NCAT, supposedly a low cost place to hear cases, for fear of being lumped with the OC’s legal costs bill, especially if the owner has limited financial means. The owner would also even have to foot any costs related to mediation,

    The proposed bylaw also states that if the OC brings a claim against an owner at NCAT or court and the OC wins, then the owner will have to pay for all the OC’s legal costs.

    However, from what I can gather from Jimmy’s and others’ responses, only the NCAT or a court can decide responsibility for legal costs, in effect rendering the bylaw invalid.

    #52386
    AvatarWhoopi
    Flatchatter

    Thanks for writing this article . My building has this by law. As I have just won two cases against my OC I wish their Costs bylaw worked in reverse . If they think they can claim costs against an owner if the the owner fails in litigation, then shouldn’t the owner be able to claim costs against the OC when they fail in litigation!

    #52383
    Jimmy-TJimmy-T
    Keymaster

    Is a by law even necessary though?

    Probably not, but it’s a way of sending out a warning to would-be hobby litigants and may steady the committee’s hand if they waver under the assaults of a strata pest.

    #52364
    AvatarEnterSandman
    Flatchatter

    Is a by law even necessary though? After we spoke to NCAT, they were more than happy to have the request for reimbursement of costs added to the application due to the frivolous nature of the claim and say that they are happy to award it in the case of time wasters with claims you correctly stated were “weak, misconceived or bound to fail”. In our case, an owner claimed the EC was acting inappropriately without any evidence and also challenged the validity of an AGM. Hopefully Larry has the evidence to support his claim or he may end up in the same unfortunate position

    #52358
    Jimmy-TJimmy-T
    Keymaster

    I think they can. We had an owner at our block that continuously attempted to send the committee to NCAT as a payback for sour grapes for being out voted on certain issues. Certainly deterred them from wasting EC and managing agents time.

    I take your point and I know that vexatious or hobby litigants exist but the processes exist under Tribunal laws and those laws trump by-laws.

    It might be more appropriate for owners to pass a by-law that, in the event of claims to NCAT that the majority of committee members regard as frivolous, vexatious or without foundation, the strata committee is instructed to request a ruling on costs  under NCAT’s  “special circumstances” that the matter had limited or no possibility of success and where the claim was “weak, misconceived and bound to fail”.

    That way you are sending a message to the miscreants but leaving the the decision on costs where it belongs, at NCAT.

    #52355
    AvatarEnterSandman
    Flatchatter

    I think they can. We had an owner at our block that continuously attempted to send the committee to NCAT as a payback for sour grapes for being out voted on certain issues. Certainly deterred them from wasting EC and managing agents time.

    #52338
    Jimmy-TJimmy-T
    Keymaster

    Your proposal would be seen as a deterrent to people exercising their rights.

    I think the OP was concerned about such a by-law, for the reasons you mention, rather than in favour.

    Anyway, here’s my thoughts on the issue, for what they’re worth

    #52335
    Avatarkaindub
    Flatchatter

    In respect to the legal fees, only the courts can award costs. Your proposal would be seen as a deterrent to people exercising their rights. Remember that when your are in court you argue for your costs, so it’s not as if it’s just a fleeting afterthought of the court.

    For the other issues, you could pass a bylaw for “service charges”. You would need to be careful of the wording to include all foreseeable events. The OC would also need to prove these costs before charging the owner. That so that it’s not seen as an arbitrary penalty but a genuine cost recovery.

    Lastly unless the OC has an order from the court they can only enter a lot with the permission of the resident. Of course if it’s a real emergency (burst water pipe) then forced access is allowed but the OC would pay for gaining access (a locksmith) and any damage caused by the entry.

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Flat Chat Forum By-laws and outlaws Current Page