Viewing 15 posts - 1 through 15 (of 19 total)
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  • #38629
    AvatarZiggy
    Flatchatter

    Earlier this year, NCAT made an order to have a new lift installed in my building by a certain date. This did not happen. In other words, the order had not been complied with.

    At a recent tribunal hearing to renew proceedings, the Tribunal member made no orders against the Owners Corporation and has now allowed another 2 months for the lift to be fully completed and certified.

    That means, four months will have expired since the original order was made to have the lift fully completed.

    Why on earth do we bother with NCAT? What a useless organisation it is. In addition, the member had a very poor knowledge of how strata works.

     

    • This topic was modified 4 months, 2 weeks ago by .
    #41584
    AvatarZiggy
    Flatchatter
    Chat-starter

    And back again I go to NCAT tomorrow. Is there anything I can say, or ask, the Tribunal member concerning the validity and effectiveness of giving an order.

    As the SC continues to drag their heels in having the lift completely finished and reliable ie working without breaking down, are there any penalties, orders or sections of the SSMA that will be of use to me at the NCAT meeting?

    #41591
    Sir HumphreySir Humphrey
    Strataguru

    In the ACT, possibly similar in NSW, the next step would not be to go back to the Tribunal. Instead, you go to the Magistrates Court and apply for an Enforcement Order of the Tribunal’s order. The court is not interested to reexamine the facts of the matter; they have already been determined by the Tribunal. The magistrates court is only interested in asking a party if they have any excuse for failing to comply with the Tribunal’s order. In the absence of an excellent excuse, the Court will order the OC to comply with the Tribunal order. You, as the applicant, can ask the magistrate what the consequences would be if you get the enforcement order you are seeking and the OC again fails to comply with the orders. The magistrate will then very sternly explain to the OC’s representative(s) that failing to comply with a court order has more serious penalties than failing to comply with Tribunal orders and that they really do not want to have that sort of escalation.

    #41595
    Jimmy-TJimmy-T
    Keymaster

    Sir Humphrey’s advice above is pretty solid.

    But since you are going back to NCAT anyway, you could ask for orders under Section 90 that when the costs of legal action are paid, that you are not obliged to pay any additional levies to cover their legal costs.

    You could also ask for supplementary orders that the Owners Corp immediately raise a special levy to pay for the lift repairs.

    #41600
    AvatarZiggy
    Flatchatter
    Chat-starter

    Thanks Sir Humphrey and Jimmy. Could I also ask while at NCAT that this SC be removed? How many years will it take to get the lift finished? We’re up to three since it was first canvassed and over a year since we signed off! So much for a 20 week job.

    #41612
    Jimmy-TJimmy-T
    Keymaster

    You can ask for one or all members of the committee to be removed under Section 238 of the Act but the Tribunal is unlikely to leave you without any form of management.

    So, unless you have an alternative committee ready to go, the Tribunal is more likely to agree to an order under Section 237 of the Act, replacing the committee with a strata manager who will undertake all of the functions of the Owners Corp.  That means that for one or probably two years you and your neighbours could have little or no input into the running of the building which will be done “by the book”.

    As we often say, it’s one of those “careful what you wish for” outcomes as sometimes the cure feels worse than the original disease.  But at least your lifts would work.

    #41622
    Sir HumphreySir Humphrey
    Strataguru

    My impression is that it goes over well at the Tribunal or Court to focus just on the outcome you need and bend over backwards to avoid looking vindictive. So, for example, you could ask for orders that the penalty for failing to comply with a Tribunal order be applied but what would that achieve? Some money from the OC would go into state general revenue. It is not necessary for the outcome you want, which is to have the various works performed promptly. Focus on that. Then, at the next AGM, when it is all done, you can argue that this committee should not be returned since it failed to comply with Tribunal orders and could have cost the OC further penalties.

    #41626
    AvatarZiggy
    Flatchatter
    Chat-starter

    Ground hog day, gentlemen. The NCAT member absolutely refused to consider removing any SC members under Section 238 of the SSMA despite my indicating those responsible for delays and highlighting the lack of due diligence. He said he couldn’t at today’s hearing. Why not?

    Even worse, he gave no time limit as to when all the remaining work (repairs to common property caused by the installation of a larger lift than the previous one) and repairing the lift door that has caused the lift to be broken down for the last week will be completed. A new lift!

    I give up!

    #41633
    Sir HumphreySir Humphrey
    Strataguru

    He said he couldn’t at today’s hearing. Why not?

    The Tribunal can only consider what is put in an application and notified to the other party. If you did not apply for orders that the SC be sacked and the SC were not given sufficient notice of that as the other party then procedural fairness demands that the Tribunal not consider that. You can’t just ask on the day ‘Oh and BTW, can we sack the SC as well?’

    #41650
    AvatarAustman
    Flatchatter

    Even worse, he gave no time limit as to when all the remaining work (repairs to common property caused by the installation of a larger lift than the previous one) and repairing the lift door that has caused the lift to be broken down for the last week will be completed. A new lift!
    I give up!

    While I understand your frustration, if a new lift has been installed that has broken down, isn’t that an installation/warranty issue?   I’m not exactly sure what you expect the SC or the SM or NCAT to do under those circumstances?  Surely a repair has been requested?

    • This reply was modified 2 months, 2 weeks ago by .
    #41658
    Jimmy-TJimmy-T
    Keymaster

    I think you’re being a wee bit harsh, Austman.  This is a long-running saga of the willful neglect of a strata block by absentee owners whose only concern seems to have been to mimimise their levies at the great cost (in terms of liveability) to resident owners and tenants.

    What the SC and SM could have done was to make sure the new lift was fit for purpose before it was installed (by not going for the cheapest opting, for instance?).

    What NCAT could have done was kicked the recalcitrant office-bearers off the committee and let resident owners run the building.  These NCAT Members have powers that they either don’t know about or are too timid to use.

    About as handy as a chocolate teapot!

    #41663
    AvatarZiggy
    Flatchatter
    Chat-starter

    Thanks so much Jimmy for your support! Boy, did I need that!

    FlatChat knows the long history of this saga. And you are right. The lift should have been fit for purpose and was not. Yesterday’s replacement of a new part by a new part is indicative of having installed a cheap lift.

    And the chocolate teapot somehow manages to keep pouring hot tea.

    Thanks once again Jimmy

    #41670
    AvatarAustman
    Flatchatter

    I think you’re being a wee bit harsh, Austman.

    Not meaning to be harsh!   More puzzled than anything.

    I was reading this thread independently.   I couldn’t see what a new lift warranty issue had to do with the NCAT appearance.  I think that’s a fair enough comment if just reading this thread.

    Now I see there have been a lot of other threads created by the OP!

     

    #41683
    Jimmy-TJimmy-T
    Keymaster

    You can’t just ask on the day ‘Oh and BTW, can we sack the SC as well?’

    True, but the Member has the discretion to do so.

    Section 238: The Tribunal may, on its own motion or on application by an interested person, make any of the following orders: (a) an order removing a person from a strata committee … (c) an order removing one or more of the officers of an owners corporation from office and from the strata committee.

    #41692
    AvatarZiggy
    Flatchatter
    Chat-starter

    Exactly Jimmy, and the Tribunal Member read out that section at the hearing.

    The new lift was signed off in July last year (the owners were told a 20 week job) and finally got up and running (not) in May this year. In the 3 months it has been operating, it has broken down nine times (three times trapping people inside) with the last time being yesterday, the day of the hearing. And there are still defects to be addressed.

    If you were in my shoes, don’t you think you’d be asking for the same thing of the member?

     

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