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  • #58462
    The Hood
    Flatchatter

    4. Keeping of animals

    The owners or occupiers of the lot shall be entitled to keep any animal upon their lot provided that:
    4.1. no dogs or cats, other than assistance animals as prescribed by legislation, shall be
    allowed upon any lot or the common property.

    The SC have recently told two owners this by-law remains valid.
    Is there a case to have the SC removed (under s238)?

     

    • This topic was modified 4 weeks ago by .
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  • #58468
    Jimmy-T
    Keymaster

    For the uninitiated, Section 238 is a provision under the Act by which owners can ask NCAT to remove committee members, office-bearers or the whole committee.

    It also says in 238(2) that

    Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has—

    (a)  failed to comply with this Act or the regulations or the by-laws of the strata scheme, or

    (b)  failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.

    And although 238 (2)  might well apply, my feeling is that the bar for such draconian measures is a bit higher than misleading owners, even if done deliberately.

    All it takes is one brave soul to challenge the by-law via Section 157:

    157   Order permitting keeping of animal

    (1)  The Tribunal may, on application by the owner or occupier (with the consent of the owner) of a lot in a strata scheme, make an order declaring that the applicant may keep an animal on the lot or common property.

    (2)  The Tribunal must not make the order unless it is satisfied that—

    (a)  the by-laws permit the keeping of an animal with the approval of the owners corporation and provide that the owners corporation cannot unreasonably withhold consent to the keeping of an animal, and

    (b)  the owners corporation has unreasonably withheld its approval to the keeping of the animal on the lot or common property.

    Or they could seek to have the by-law rescinded under Section 150:
    150   Order invalidating by-law

    (1)  The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.

    (2)  The order, when recorded under section 246, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order made by a superior court).

    (3)  An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.

    In reality, the objecting owner would probably only need to request mediation at Fair Trading for the SC to realise the by-law was invalid.
    The fact that there are at least two other legal avenues for overturning the by-law would suggest to me that the Tribunal is unlikely to go for 238 – unless the SC has wilfully ignored Tribunal rulings.
    And then there is good old-fashioned democracy.  If the SC has run up large legal bills in trying to defend the indefensible, they can and should be voted out at the next AGM.
    It’s worth noting that in one of the blocks that was prominent in the “no pets” legal battle of the past couple of years, the owners, a majority of whom had supported legal action, then turned round and voted the strata committee’s key players out after they lost.
    #58577
    The Hood
    Flatchatter
    Chat-starter

    The response is a little ideal world and, yes, in an ideal world it is a great response.
    But; the OC in question has been to mediation before over this and is aware of a current mediation application. They will fight it.

    The OC since 2017 has been kept abreast of everything, the initial first instance NCAT matters (Yardy, Roden McCormick and so on), the SC was kept abreast of the NCAT Appeal outcomes in some of those matters and was given the NSWCA Cooper decision the day of the decision.  The SC was also aware of the Bill that led to s 137B, the passing of that Bill and the date on which 137B commenced.
    The SC (OC) stands firm, with the backing of the majority, that the by-law is still valid.

    There was even an NCAT Appeal matter over an assistance dog on the 23<sup>rd</sup> Sept and it seems the OC will lose that matter, potential costs in excess of $10k. The Member (Dept Pres) even said s 137B meant the OC could not remove the dog simply because it was a dog; i.e. the no dogs by-law was not enforceable. The dogs assistance animal status not relevant anymore.
    The OC’s representative even denied knowing about the Cooper case.

    Yet the OC’s position as expressed at the Appeal Panel hearing was one of every avenue will be explored and scuttlebutt is that no expense will be spared. The OC even threatened, in their submission, to go to the Federal Court over the assistance animal status of the dog in question; not that it matters anymore due to s 137B.

    The SC knows everything and willfully ignores it all because they have majority backing and the majority wants no cats or dogs. You can have a goat or a pig or horses, those silly looking llama things, it is a rural strata plan, anything except a cat or dog.

    Nothing ‘ideal world’ about a lot of SPs and their SC members, especially here.

    #58584
    Jimmy-T
    Keymaster

    The response is a little ideal world and, yes, in an ideal world it is a great response.

    What do you mean my response is “ideal world”?  You are only now telling us that the strata committee will wilfully ignore NCAT orders.

    If they are doing that and do so again, then by all means have them removed using a section 238.

    But please don’t disparage responses when you have hitherto only provided a one-line question and kept the detailed background to the issue to yourself.

     

     

    • This reply was modified 3 weeks, 1 day ago by .
    #58692
    Quirky
    Flatchatter

    I can see both sides of this issue. One party can commence legal action, even if they suspect the action wont be successful, and it is the action itself that is the penalty, and what causes the other party to submit. The stress, time and money involved in defending a legal action, even one you will probably win, is often sufficient to persuade you to go along with  whatever they want.

    The response to that strategy is to not engage with them. You do not have to pay for legal representation. You do not have to spend time and resources on defending the action. What you can do, is spend a half hour putting together a short explanation of your side of the argument, and just send that off at every opportunity. Something like,
    “I believe that by-law #4 “Keeping of Animals” is an invalid by-law because of S137B of the Strata Schemes Management Act, which states that a by-law like #4 “has no force or effect” because it unreasonably prohibits the keeping of an animal (in my case a dog) in a lot. Therefore, because there is no by-law in force about keeping animals, in this building, I will be keeping the animal, until the owners corporation adopts a valid by-law that covers the keeping of animals. My keeping of an animal will not cause any unreasonable interference with another occupant’s use of a lot or common property, as set out in Regualtion 36A, and so I believe that my keeping an animal even when a valid by-law is adopted, would still be permitted. ”

    Then send that off, in your own name, at every opportunity, to answer any lawyer’s letter, to any NCAT mediation or hearing, and submit it to any owners corporation meeting. Don’t pay for lawyers. Don’t attend hearings. Just do the minimum. If some loophole occurs that lets the other side succeed, then that will be years away, and in the meantime you will have had a pet with you. It is a principle of law that costs and so forth should be awarded fairly. If you spend $10 on your argument, for a few stamps and printing out of letters, and the other side spends $100,000, the court would not make you pay for their costs even if they win. And we know they wont win. The Courts and Tribunals are aware that people use money to influence the law, and don’t like that happening. So you need to be resolute, and not get sucked into the game. Don’t engage, don’t spend money, but do express your position briefly, clearly and whenever it helps.

    #58694
    Jimmy-T
    Keymaster

    There is a very interesting principle embedded in Quirky’s post – the power of doing nothing.

    If you honestly believe your building’s by-laws are invalid – and perhaps have taken legal advice to confirm that – then it might be worth the risk of maybe having to remove your pet at a later date.

    As for costs, the NSW  Tribunal has a very narrow range of circumstances under which they will award them, one of them being that the other side knew or should have know that the case had no merit.

    But, as Quirky says, it’s not up to you to challenge the invalid laws, it’s up to the committee to prove that they are, in fact, valid when all the evidence is there to suggest otherwise.

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