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I think I am going to ask for an Order from a CTTT Adjudicator under ‘Section 159. To invalidate a by-law because the Owners Corporation did not have power to make it.’It says on the CTTT ‘form’ and the Office of Fair Trading says “you have to do what it says on the form, you need to go to mediation first”. This seems silly.
If you’ve read my topic under By-Laws, you’ll have seen it’s an unjust By-Law made in 1973, not registered until 1979 (so not within two years as required even then) conferring Exclusive Use to a select group for car parks. It’s also an ordinary resolution, not the Special Resolution seemingly required. Other things about this By-Law also point to it being crook.Do I really need to go to mediation first?
I haven’t mentioned the Executive Committee ignores almost everyone else and so does the Strata Manager. I have made several approaches to them myself on this and they simply don’t reply. It comes about because they want to spend over $50,000 of owners corporation funds fixing up this area which is Exclusive Use car parks for less than a third of the Lots.
I am not rich, can’t afford lawyers. Others agree with me but ‘don’t want to be involved’.
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I think the CTTT insists on mediation for everything except for the OC asking for a fine to be imposed for a breach of By-Laws (supported by a previous Notice To Comply). That’s what the Strata Living booklet flowchart says.
The tragedy of your situation is that common property with exclusive use rights is still common property and therefore the duty of the OC to maintain unless the exclusive use By-Law says otherwise, which it doesn’t. But that duty does not include improvements.
I would still try to have the By-Law struck out on any of the grounds previously mentioned and see what the CTTT says.
But let me play devil’s advocate for a moment.
The By-Law was made in 1975 and registered in 1979.
For 34 years, nobody complained.
You became an owner in 1994 and were aware at that time of the By-Law.
For 19 years, you didn’t complain.
Does anybody know if the CTTT has a “statute of limitations” on past strata wrongdoings?
Does anybody know if “sqatters rights” apply to strata common property?
JT has described the actions of the exclusive use owners as a “land grab”.
Isn’t what you’re contemplating now also a “land grab”, not for your exclusive use, but for everyone’s visitors?
You don’t have to go through mediation if you don’t want to, you just say you don’t want to. While it is encouraged, the OFT can’t force you.
However, it can count against you if you don’t do it, particularly if there is no evidence of you trying to sort it out prior to making an application.
I agree with SX not going to Concillation risks your chance of even getting an Adjudication hearing because you have to state whether you have been to concillation on the Adj application and an Adj could reject your request if you haven’t.
Also the time scale is against your (it’s 35 years ago) and I also don’t know whether a statue of limitations applies to bylaws.
A safer argument would be that the EC is planning on spending OC funds on exclusive use areas which should be the reasponsibility of the owners that benefit from the exclusive use areas.
Whatever you decide put forward as many arguments as possible to the Adjudicator for the bylaw to be overturned or the spending to be refused because you only need the Adj to find in your favour on one of the points for you to win.
I don’t see that there is anything to mediate. It is cut and dry – the by-law was not registered according to legislation so it should be struck down.
If the LPI was doing their job properly they would not have allowed this to be registered. I wonder if there is a way you can apply to LPI for them to remove the registered dealing from the certificate of title since it was done incorrectly?
@ccbaxter said:
I think I just have to give it a go at the CTTT for the princely sum of $78 without OFT mediation which I think would be a waste of time and another $78.Have a look at KiwiPaul’s posting below. If you initiate an action at the CTTT and choose not to follow the prescribed procedure (mediation) you won’t get past square one. This issue may seem “cut and dried” to you and if that’s the case then the matter can be resolved at mediation with agreement on a binding resolution. But if the other party feels they have a valid case, the money you are wasting is the cost of making an application for mediation without going through the proper channels.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
@ccbaxter said:
Perhaps I was naively assuming that, once the CTTT sees this patently unfair, ill-conceived and ancient By-Law which demonstrably breaks several rules, and the situation we’re in, they’d have no hesitation in throwing it out.
The Adjudicator might not even get as far as looking at your arguments if he is a by the book type. He will go through your Adjudication application see you have ticked no concillation and reject the application because no concillation was attempted.
You will loose your $78 for adjudication and have to pay another $78 for concillation and if that does not resolve it another $78 for a second adjudication hearing.
It doesn’t really work like that – CTTT adjudicators can move in mysterious ways. While something may seem cut and dried to you, they may have a completely different perspective. A lot can depend on what you put in your application – when we went to adjudication a while ago I was painstaking in putting everything that we thought was relevant and backing it up, because you only have one shot at it and you can’t assume they have the same understanding of the issue as you (because they don’t). And there is also the wild card aspect – there have been some pretty nutty decisions of adjudicators subsequently overturned.
You need to bear in mind is that your view is your view – the fact that others may have different views doesn’t mean that your view is wrong, but it does mean that there is a difference of opinion. Until that difference of opinion is resolved, you can’t say either party is right or wrong.
Re Mediation – you don’t get a ruling at mediation, the aim of mediation is to bring the parties together with the aim of reaching a resolution. The mediator is there to facilitate that and they can’t take sides or make any rulings or conclusions of any kind. So things like the legality or otherwise of the by-law may be secondary.
Note that when you go to mediation the parties will be you and the Owners Corporation, it won’t be you and the individual owners. So the Owners Corporation will have to resolve to go to the mediation and authorise someone to act on their behalf, and also to reach an agreement with you, if they think that is appropriate. Of course they may refuse to attend which they are within their rights to do.
In your case, I suggest (as suggested by others) the easiest path is to go through the mediation step rather than then having to explain why you haven’t done that at the adjudication stage. If (as is likely) you don’t reach a resolution, then you can just quickly move on to adjudication.
@scotlandx said:
…….. So the Owners Corporation will have to resolve to go to the mediation and authorise someone to act on their behalf, and also to reach an agreement with you, if they think that is appropriate……….SSMR 2010 says,
24 Attendance and representation(1) A mediation session must be attended by each party or by a legal representative, or other representative, having authority to settle the matter.
(2) Other persons may attend a mediation session with the leave of the mediator.
But that is not how it works according to Michael Courtney of OFT. Must does not mean must. I put it to Mr Courtney at a mediation that the other party made no resolution to attend and questioned if the other party had authority to settle.
His response was to the effect that Reg 24 was not operated by OFT as it reads. Anything that came out of the mediation would go back to the EC for ratification so that the other party in the mediation did not have authority to settle was not important.Some readers might like the following:
83 “……………. ‘Must’ means ‘must’. It is an imperative – expressing necessity, obligation and compulsion…………….”
Justice J Pembroke in The Owners – Strata Plan No 70798 v Bakkante Constructions Pty Limited [2013] NSWSC 848 (19 July 2013)
I would encourage the more strata curious readers to go to the case and see the context of the comment and how the Justice viewed the failure to “must”.
Then consider going through the Act and Regs, using a find feature of some program, and see all the things that “must”.I would encourage everyone to throw the comment of Supreme Court Justice Pembroke at CTTT when dealing with some dispute over a section of the Act that has the word must in it, until CTTT understand that must means must.
So, does the Strata Act allow for recalcitrant owners to be seized, shackled and dragged to the mediation? Does it state penalties for non-attendance? How about non participation – turning up but saying nothing?
I expect the new laws to say that there is a positive view of those who genuinely attempt mediation and a negative perception of those who don’t. That could change everything.The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
@JimmyT said:
So, does the Strata Act allow for recalcitrant owners to be seized, shackled and dragged to the mediation? Does it state penalties for non-attendance? How about non participation – turning up but saying nothing?
I expect the new laws to say that there is a positive view of those who genuinely attempt mediation and a negative perception of those who don’t. That could change everything.How is your reply relevant to my post?
I’m just saying what scotlandx wrote and how OFT operate, according to Mr. Courtney, are divergent.The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
@SMO said:
How is your reply relevant to my post? I’m just saying what scotlandx wrote and how OFT operate, according to Mr. Courtney, are divergent.No, you weren’t “just saying” that. You also said:
I would encourage everyone to throw the comment of Supreme Court Justice Pembroke at CTTT when dealing with some dispute over a section of the Act that has the word must in it, until CTTT understand that must means must.
You have decided that the Act is being operated wrongly and I was pointing out that there is no penalty attached to this compulsion to attend mediation (apart from failure to take part doing serious harm to your case when you take it to the CTTT) so the word “must” carries little weight. There are issues under the Strata Act that do carry penalties for failure to comply, but not this.
Why?
You can’t compel people to give evidence in court so how can you compel them to negotiate at a much lower legal level. There is no clause that says failure to attend mediation means, for instance, you automatically lose or you will be fined. There is no clause that says even if you do attend that you must engage in a negotiation. There is basically an understanding that if you refuse to attend or engage properly in mediation, it will not be looked upon kindly when is goes to adjudication.
But there are plenty of Owners Corps and strata managers who keep their powder dry until adjudication (which is done on paper, not by personal representation) where they can, for instance, explain that they declined mediation because it was a vexatious complaint with little chance of success so the cost of representation at a mediation was a de facto financial penalty against them for not agreeing to whatever the plaintiff was demanding.
All this nitpicking and hair splitting over the meaning of “must” gets us nowhere. Let’s stick to practicalities. One way CCBaxter can discover if his ancient by-law stands up is to challenge it at the CTTT by seeking an order under sections 158 or 159 (see below).
Or he can persuade the beneficiaries of this by-law that their free ride is over and invite them to formulate a new by-law that is mutually acceptable and doesn’t bear the additional and unnecessary cost of litigation.
158 Order with respect to by-laws conferring exclusive rights or privileges over common property(1) An Adjudicator may make an order prescribing the making, amendment or repeal, in terms of the order, of a by-law if the Adjudicator finds:
(a) on application made by an owner, that the owners corporation has unreasonably refused to make a by-law of the kind referred to in section 51, or
(b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed by-law of that kind, or to the proposed amendment or repeal of such a by-law, or
(c) on application made by any interested person, that the conditions of such a by-law relating to the maintenance or upkeep of any common property are unjust.
(2) In considering whether to make an order under this section, an Adjudicator must have regard to:
(a) the interests of all owners in the use and enjoyment of their lots and common property, and
(b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a by-law of the kind referred to in section 51.
(3) An Adjudicator must not determine an application referred to in subsection (1)
(a) by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.
(4) For the purposes of subsection (1), an Adjudicator may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.
(5) An order under this section, when recorded under section 209, has effect as if its terms were a by-law (but subject to any relevant order of a superior court).
159Order invalidating by-law
(1) An Adjudicator may make an order declaring a by-law to be invalid if the Adjudicator considers that an owners corporation did not have the power to make the by-law.
(2) An order under this section, when recorded under section 209, 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 of 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
(4) An application for an order under this section may be made only by a person entitled to vote on the motion to make the by-law or the lessor of a leasehold strata scheme.The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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