Flat Chat Forum NCAT – the NSW Tribunal Current Page

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  • #53136
    AvatarEnterSandman
    Flatchatter

    Hi flat chatters,

    I posted previously about a tenant who had refused to remove a peep hole camera from common property. Thank you for your feedback and advice so far. Our committee have unfortunately had to take the issue to NCAT and are now required to seek legal advice and representation during the hearing. At a time when we are trying to raise funds for much needed works on the building, such as replacing windows, the committee and many owners are understandably aggrieved that they are being forced to spend this amount of money due to a tenant blatantly not following by laws. Hypothetically, if a tenant was bordering on becoming a vexatious litigant, and had form such as previous records of lodging applications with NCAT to be a nuisance and subsequently withdrawing them just before a hearing, what were the chances of seeking costs against the said tenant? Is this something NCAT routinely consider? We have had many tenants who are fed up with the process being forced upon the EC and want an end to it

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  • #53139
    Jimmy-TJimmy-T
    Keymaster

    Further to my previous comment and link to the NCAT fact sheet on costs, I think if you can provide documentary evidence of the behaviour you alleged previously, you might have a strong case.  But it would have to be backed up by  documents that proved the behaviour, for instance copies of notices to attend hearings attached to notices that the case had been dropped.  Just turning up an claiming the resident has behaved badly in the past will probably not be enough.

    Here are some criteria from the NCAT factsheet that might support a costs claims:

    a) A party has conducted their case in a way that unnecessarily disadvantages another
    party

    The failure to provide documents on time would support this claim.

    b) A party has been responsible for unreasonably making the case take longer

    See a) above

    c) The relative strength of a party’s case or whether the case was hopeless

    e) A party’s case was frivolous, vexatious or misconceived

    In previous interactions with your committee, it may be that this resident has shown a detailed knowledge of strata law (albeit, misinterpreted to suit their position).  Providing evidence of emails and letters in which strata law has been quoted, whether rightly or wrongly, could bolster a case that ticked all of the above boxes in c) and e).

    If the resident has shown knowledge of the law, and the law is clearly not in their favour, then you are entitled to ask what motivated their actions when they would have known their case was likely to have failed.

    Perhaps if you tell the resident that you will be instructing a lawyer and that you will be seeking costs it might get them to back off.

    One other thing, I think you need to make it clear that you will be seeking costs in your initial application.  I recall a case recently where the winning side didn’t get costs awarded becasue they hadn’t asked for them up front but the losing side did because they had.

    • This reply was modified 2 weeks ago by .
    #53138
    Jimmy-TJimmy-T
    Keymaster

    Hypothetically, if a tenant was bordering on becoming a vexatious litigant, and had form such as previous records of lodging applications with NCAT to be a nuisance and subsequently withdrawing them just before a hearing, what were the chances of seeking costs against the said tenant?

    Have look at section 6 of this document.

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Flat Chat Forum NCAT – the NSW Tribunal Current Page