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  • #41746
    Avatar
    TrulEConcerned
    Flatchatter

    Hi all,

    My tenants filed an application with NCAT to sever the lease I have with them given the noise, dust, deteriorating living conditions and risk to their health imposed on them by the renovations from the owner next door.

    NCAT upheld their claims and allowed them to vacate 6 months before their lease expired without paying the agreed break fee or any rent due until the end of the lease because NCAT said the noise and dust from a neighbour’s renovations made my  premises “uninhabitable”.

    Naturally I was not happy, to put it mildly. As my tenants and I agreed on the amount from the bond that should be surrendered by the tenants for damage they caused, NCAT coaxed us to finalise the matter “by consent”.

    Which we did.

    Given NCAT did not hold me responsible for the impact on my tenants’ living conditions,  I asked the NCAT Member what I can do about my expected loss of rent (until I find a replacement tenant. He suggested I could take the neighbour who renovated, to the local court claiming the renovations were carried out in a manner that affected the tenants’ right to quiet enjoyment, which is why he deemed the premises “uninhabitable”. In short, the neighbour (who never lived in his unit, but bought, renovated and flipped the property)  committed a nuisance and I should seek damages for the loss of rent which I would sustain until a new tenant is found and starts paying me rent.

    Well, to the Local Court I went, given I lost $17k while the premises were empty, as it took many months to find a suitable tenant.

    I represented myself and I lost. (It was not economically justified to hire a lawyer given the quotes received and the quantum involved).  The Court found the neighbour was reasonable in his conduct and hence no nuisance was committed.

    1) Must the local court decisions be consistent with NCAT’s decisions? It seems in this case they are  polar opposites.

    2) Can I appeal? What are my chances?

    Note: as “consent orders” were issued by NCAT, there was no mention of the “uninhabitable” status of my premises as the reason the tenants could vacate and hence I had no evidence to pony up at the Local Court. FYI, soon after the matter was heard by NCAT I asked for chapter and verse of what transpired at the hearing and was told that when consent orders are handed down, what I am after is not documented for then parties. But if I want proof of what went down at NCAT, I need to buy a recording of the (long) proceedings, requiring me to buy several CDs and then pay for a transcription service to produce a hard copy.

    #41764
    Jimmy-T
    Jimmy-T
    Keymaster

    I have been told that judges feel insulted when plaintiffs or defendants represent themselves – it’s like you have no respect for their profession or the system and they tend to rule accordingly, regardless of the merits of the case.

    Hire a lawyer and get them to go for costs, would be my advice.

    #41787
    Avatar
    TrulEConcerned
    Flatchatter
    Chat-starter

    I really hope you’re wrong, but on reflection you may be right. At the LC the defendant’s solicitor did not seem to make a case. This is after he turned up 40 mins late. All he said was that the neighbour had OC approval for the renovations. He did not dispute my tenants vacated early or that I was out of pocket for months on end.

    Also I heard of a recent NCAT decision where tenants claimed noise from a neighbour caused their premises to be unlivable and so they vacated unilaterally. NCAT rejected the tenants’ application. But in my NCAT case (self represented) NCAT said the premises were uninhabitable. Again the counter-party (the tenants) had a lawyer (young, inexperienced and ill prepared), who won.

    Prior to appealing the judgement, I suppose I need to weigh up

    1. The chance of success;
    2. The cost of hiring a lawyer; AND
    3. The defendant’s likely legal bill in the event that my lawyer loses.
    • This reply was modified 2 months, 1 week ago by .
    #41795
    Avatar
    kaindub
    Flatchatter

    I’m sorry to say that your horse has bolted.

    As you have taken your case to a court already and had a a ruling, you’ll need to find some compelling ground to have it reviewed in a higher court.

    Be mindful that taking your case to an appeal does not allow you to enter new evidence.

    This is the pitfall of self representing. (I’m not suggesting that self representation is a bad idea, but not having a lawyer guide you risks falling into the traps of the legal system. Again to save any argument, I believe the legal system we have is equitable, though to the lay person somewhat baffling).

    For others reading this, ALWAYS consider mediation rather than court. In mediation no one assumes blame, and if you can come to an agreement, the amount you get in your pocket can be greater than that awarded in a court less your costs. Most lawyers will help you with mediation at a a low cost.

    Court is also risky and you may not get the result you want.

    As this member has found, sometimes the cost of legal action exceeds your losses. It’s a call whether you want to be right ( and spend lots of money proving it) or sometimes just accepting defeat and cutting one’s losses.

     

     

    #41847
    Avatar
    Austman
    Flatchatter

    I have been told that judges feel insulted when plaintiffs or defendants represent themselves – it’s like you have no respect for their profession or the system and they tend to rule accordingly, regardless of the merits of the case.

    I’ve read that judges tend to think that self representation at court level can both waste the court’s time and be a major disadvantage to the self representing party.

    It’s because self representing parties tend to have both poor legal knowledge and a poor understanding of how the legal system works.  It puts them at a major disadvantage that can end up frustrating everyone involved.

    At Tribunals on the other hand, self representation is compulsory or encouraged.  It’s somewhat ionic then that OC/BCs, being entities, always need representation, even at Tribunals.  It need not be professional representation, but that’s the usual choice.

    #41874
    Avatar
    TrulEConcerned
    Flatchatter
    Chat-starter

    Hey Kaindub,

    Thanks for your feedback.

    You write:
    As you have taken your case to a court already and had a a ruling, you’ll need to find some compelling ground to have it reviewed in a higher court.

    Are the following points “compelling”?

    1. The magistrate found that the neighbour’s actions (in renovating) were reasonable whereas NCAT found the exact opposite, which is why NCAT allowed my tenants to vacate without paying the break fee or the rent until the end of the lease;
    2. In its judgement, the Court included some of the evidence (provided by my tenants to NCAT) which I submitted, that serves to paint me in a poor light because the Court excluded from its publication my responses to the tenants’ claims (also submitted to the Court);
    3. Soon after the NCAT hearing I asked for reasons (in writing) why the NCAT Member claimed the premises were “uninhabitable” but NCAT told me that such reasons are not offered when consent orders are handed down;
    4. NCAT does not offer a transcript of proceedings and therefore I did not seek a transcript of the NCAT hearings to submit to the Court given the high cost for a transcription service;
    5. Cases I read indicate that many times renovations are part of life and folk have to put up with it. But if NCAT argued that the noise was unreasonable, so much so that the tenants could vacate without liability, then how can the Court find the exact opposite?

    Surely there is something unfair about a neighbour making hundreds of thousands of dollars profit in buying, renovating and flipping a property and a neighbour having to wear the cost of losing a tenant which would not have occurred but for the renovations causing my premises to become “uninhabitable”.

    #41876
    Avatar
    TrulEConcerned
    Flatchatter
    Chat-starter

    Hey Austman,

    You write:
    ... that self representation at court level can both waste the court’s time and be a major disadvantage to the self representing party.

    It’s because self representing parties tend to have both poor legal knowledge and a poor understanding of how the legal system works.  It puts them at a major disadvantage that can end up frustrating everyone involved.

    I know the law as it relates to this matter. I don’t know the legal system, but it was straight forward on the day. Nobody pulled any rabbits out of any hat.
    A barrister I met casually some time ago told me that against the neighbour, I had a (strong) claim in nuisance and (a lesser claim) in negligence (the neighbour breached By Law 1 as he robbed my tenants of their right to quiet enjoyment, that was the basis of the NCAT outcome).

    What do you think a solicitor would have charged for a small claims (under $20k) matter at the LC?

    Note: I spoke to barristers not solicitors about handling the matter and their fees did not make economic sense to me, especially if they lost the case but also if they won.

     

    #41890
    Avatar
    Austman
    Flatchatter

    What do you think a solicitor would have charged for a small claims (under $20k) matter at the LC?

    Sorry, my comment was what I had read about getting professional representation in courts in general.

    I think you probably have a case, although I note that OCs can give written permission to make noise eg for renovations.  Hopefully within reasonable hours only!

     

    #41962
    Avatar
    TrulEConcerned
    Flatchatter
    Chat-starter

    I discovered that in the By Law which documented the approval granted by the OC to the renovator was the following term:

    Special By Law
    The owner ……shall be responsible at its own expense
    (ii) to make good any damage to a lot or to common property arising out of the Works at his own expense
    .

    Can “damage to a lot” be defined as including lost rent caused by the renovator’s actions? If so, then the neighbour breached the contract he had with the OC, of which I am a member. Right?  Hence I have a case against him, right?

     

    #41981
    scotlandx
    scotlandx
    Strataguru

    The short answer to that is no. Damage to a lot does not encompass loss of rent due to the lot being uninhabitable. “Damage to a lot or to common property” means physical damage, which the owner would then have to make good, or pay to make good.

    Note in terms of enforcing that by-law (or any by-law)  it has to be enforced by the OC, an individual owner can’t take action to enforce the by-law. The only thing they can do is seek to have the OC enforce it. But that by-law won’t help you here.

    I agree with Jimmy, you should get a lawyer, or just move on. I think you do have a case, but the issues need sound legal advice.

     

     

     

    #42051
    Avatar
    TrulEConcerned
    Flatchatter
    Chat-starter

    Hi Scotlandx,

    1. Thanks for the reply explaining that I cannot rely on the by law in question that refers to “damage”. As to your point on its enforcement by the OC,  I heard from Fair Trading that the OC can enforce by laws if it chooses, but has legal requirement to do so. Is that true?

    2. I agree that the matter needs to be handled by a lawyer and spoke to one who looked into the case but indicated doesn’t have the manpower to handle it at this time and I need to act within a certain time frame.

     

    #42073
    Jimmy-T
    Jimmy-T
    Keymaster

    TrulEConcerned wrote:

     I heard from Fair Trading that the OC can enforce by laws if it chooses, but has legal requirement to do so. Is that true?

    Did you mean “has no legal requirement”? (I assume so, otherwise the statement is contradictory) If so, once again, Fair Trading is giving out highly dubious advice.

    I had a chat with former Fair Trading Minister  Victor Dominello about this a couple of years ago and he was quite clear on this. “Read what I said on the second reading of the Bill (the 2015 strata Act)”  The owners corporation has a responsibility to enforce its by-laws.”

    I think the key phrase in the Second Reading is this:

    Members of the strata committee will now have a statutory duty to act for the benefit of all owners and to exercise due care and diligence in their role.

    This view  and consequences for not doing so are enshrined in Section 232 (2) of the Act:

    Orders to settle disputes or rectify complaints

    (2) Failure to exercise a function

    For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if:

    (a)  it decides not to exercise the function, or

    (b)  application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.

    So, yes, the committee can decide not to enforce your by-laws in a specific case, either by refusing or failing to do so within a certain time, but then you can go to NCAT and ask for orders compelling them to take action.

    If Fair Trading told you otherwise, they are wrong (yet again).

    #42141
    scotlandx
    scotlandx
    Strataguru

    1. Jimmy is correct, Fair Trading is wrong. You can take action to make the Committee enforce a by-law. In this case however that is irrelevant.

    2. There are a lot of lawyers, contact the Law Society (I assume you are in NSW) and ask them to refer to you one.

    #42396
    Avatar
    TrulEConcerned
    Flatchatter
    Chat-starter

    Thanks for the invaluable advice Jimmy, Austman and ScotlandX.

    Sorry for my late reply but I was tied up speaking to a couple of lawyers (here in NSW) and a barrister about appealing the matter.

    In short I was told that I could and have more than a good chance of winning BUT at the end of the day I will be financially worse off as the costs greatly outweigh the benefits (ie. damages possibly awarded to me) of taking action.

    So naturally it makes no sense to flog an expensive dead horse.

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