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  • #39064

    I’m getting slightly ahead of the news here, but in the coming days there will probably be a story online about the massive loophole in the current strata laws that allows NCAT, the Tribunal, to issue orders, but doesn’t give them the power or penalties to enforce them.

    Incredibly (not!) some strata schemes that have had orders made against …https://www.flat-chat.com.au/from-the-forum-tribunal-exposed-as-toothless-tiger/

    • This topic was modified 2 years ago by .
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    Sir Humphrey

    My experience with ignored Tribunal orders is as follows:
    In the ACT.
    The orders were against an individual owner (to remove an unapproved structure by a particular date), not the strata scheme.
    In the Tribunal we (I) asked the Tribunal member, ‘If we get the orders we are seeking, and if those orders are not acted upon, can we (the committee) also have an order that would confirm that we can engage an appropriate tradesperson to enter the unit area (only access to the outside area needed) in accordance with section whatever it was of the Act to the remove the structure?’
    The Tribunal member’s written Decision and Reasons set out how the Tribunal would have the power to make such an order but that it declined to do so because the Magistrates Court has a process for enforcing Tribunal orders so it was not sufficiently necessary for the Tribunal to give us the order we sought.
    I appreciated that the Tribunal member went to considerable trouble to consider the matter and then lay out in detail the process for us to follow in order to get an enforcement order.
    It was a bit of a bother but I found the ACT Tribunal helpful.


    My experience with NCAT was not a pleasant experience. Our building has failed to undertake any maintenance despite hundreds of thousands in repair costs being incurred through concrete cancer remediation.
    Painting to protect building external surfaces and keep the value of property up, blocked and overflowing sewer and storm water, water leaks from water pipes into lots, lifting and subsiding driveways to name a few issues.
    This was dismissed by the member and we were forced to withdraw despite presenting a file of many pages including photos. The agreement with strata has not been honored and I guess we will be back for another go.
    Next time I will do it with a lawyer to represent as they will not be so easily walked over.
    Quite a disappointing experience and a waste of government resources.
    Have to keep on the strata plan to keep building the picture of a strata plan that is just looking to avoid costa in the immediate term.

    The Hood

    There is an avenue. It has been used in Bott v NSW Land and Housing Corporation [2017] NSWCATCD 88
    But far be it from the State to be constantly policing if its orders have been complied with.
    Section 202 (1996 Act) required an applicant, s 73 CAT Act doesn’t. Section 73 requires ‘the State’ to follow it up.
    The absence of an equivalent of s 202 is the ‘loophole’.
    The Tribunal is not toothless.

    73   Contempt of Tribunal

    (1)  The Tribunal has, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, the same powers as the District Court has in those circumstances in relation to a contempt of the District Court.


    Section 27 (1) provides that, in the case of proceedings for contempt of the Tribunal, the Tribunal may be constituted by one or more members (being members who are the President or any other member who is a current or former NSW judicial officer).

    (2)  A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.

    (3)  Without limiting subsection (1), the Tribunal may vacate or revoke an order with respect to contempt of the Tribunal.

    (4)  For the purposes of this section:

    (a)  sections 199, 200 and 202 of the District Court Act 1973 apply to the Tribunal and any members constituting the Tribunal in the same way as they apply to the District Court and a Judge of the District Court, and

    (b)  a reference in section 200 of that Act to the registrar of a proclaimed place is taken to be a reference to the principal registrar, and

    (c)  section 201 of that Act applies to a ruling, order, direction or decision of the Tribunal under those provisions as so applied.


    Section 201 of the District Court Act 1973 (as applied by this subsection) provides for appeals to the Supreme Court against contempt decisions of the Tribunal under this section.

    (5)  Without limiting the powers of the Tribunal under this section, if it is alleged, or appears to the Tribunal on its own view, that a person is guilty of contempt of the Tribunal (whether committed in the face or hearing of the Tribunal or not), the Tribunal may refer the matter to the Supreme Court for determination.

    (6)  The Supreme Court is to dispose of any matter referred to it under this section in the manner it considers appropriate.


    The Hood wrote:

    The Tribunal is not toothless.

    Two questions:

    1. Does all of that mean the Tribunal can impose penalties?
    2. Why did the Tribunal say that they don’t have the power to pursue the failure to abide by their orders.

    I’m not questioning your logic – I’m just curious as to why the Tribunal doesn’t seem to know this, despite being aware of the “loophole” for more than two years.

    The Hood

    A failure to comply with orders , i.e. disobey orders is contempt in the face of the Court.
    A failure by a party to comply with a court order may constitute a contempt of court (Legal Services Board v Forster (No 2) [2012] VSC 633, [43])
    Disobeying court orders including subpoena: O’Shane v Channel Seven Sydney Pty Ltd [2005] NSWSC 1358

    If we take s 73 (CAT Act) on face value and the Tribunal has “the same powers as the District Court has in those circumstances in relation to a contempt of the District Court” and  the District Court may ( s 199(7) of the District Court Act) ‘punish contempt by a fine not exceeding 20 penalty units or by imprisonment for a period not exceeding 28 days’ then yes the Tribunal would appear to have the power to fine (for contempt) those who do not comply with their orders.

    Why isn’t it a power used; possibly because the Tribunal would need to initiate the proceedings rather than the person (party to the orders) who had issue with an order not being complied with.

    Under the old s 202 it was one of the parties to the order who would have made application for a penalty. Under s 73 of the CAT Act NCAT are the ‘party’ initiating the action against the alleged ‘offender’.

    ‘Loopholes’ that seem impossible to close, unused powers; none of it does much for consumer confidence.

    Sir Humphrey

    That the NSW Tribunal has power to enforce its orders but doesn’t is consistent with the advice we got from the ACT Tribunal. As noted above, it gave its reasons as being that ‘it was not sufficiently necessary to do so’ because there was an explicit process in the Magistrates Court Rules for a person to seek an enforcement order to enforce an order of either the Tribunal or the Magistrates Court. i.e. the explicit process takes precedence when there are two ways by which something might be done.

    The Hood

    Extract from response in relation to enforcement of orders

    I also note your comments about enforcing NCAT orders in strata matters. By way of background, Section 202 of the Strata Schemes Management Act 1996 (repealed) allowed the applicant for the original order to ask the Tribunal to require a person to pay a civil pecuniary penalty if the person contravened an order of an Adjudicator under Chapter 5 of the 1996 Act. The 1996 Act was repealed on 30 November 2016 and replaced by the 2015 Act. No such provision exists in the 2015 Act, although an Owners Corporation may seek a civil penalty for contravention of a by-law under section 147 of the 2015 Act.

    The enforcement of NCAT orders is provided for in Part 5 of the CAT Act and I draw your attention to Division 1-3. A party should seek legal advice before considering any of the options contained in the Divisions. A party may also seek to renew the proceedings if an order is not complied with. Information about renewing is on NCAT’s website at <u>http://www.ncat.nsw.qov.au.</u>

    Yours sincerely

    Principal Registrar and Executive Director NSW Civil & Administrative Tribunal

    NCAT seem to be aware of s 73.

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