Why strata lawyers need to dial down the TV drama

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Michael J. Fox as Louis Canning; Christine Baranski as Diane Lockhart of the CBS All Access series THE GOOD FIGHT. Photo Cr: Patrick Harbron/CBS ©2018 CBS Interactive, Inc. All Rights Reserved.

I received an email from a long-time Flatchatter the other day who attached a letter they had received from their strata committee’s lawyer, demanding that they withdraw a case at the NSW Tribunal.

The letter was one of the most blatant examples of bullying I have ever seen (and I have seen a few).

I can’t go into too much detail without identifying the combatants but suffice it to say that this is a typical strata conflict that should have been dealt with years ago but has been allowed to fester and grow.

The owner wanted the strata scheme to fix common property that was causing leaks into their flat, and had taken the strata scheme to the tribunal for enforcement.

Several years and tens of thousands of dollars in legal bills later, the scheme has been dragged to the tribunal several times, mostly because of their failure to get the job done properly.

Clearly there is an element of personal animosity and frustration on both sides, but the whole sorry saga has damaged the health and finances of the apartment owner, not to mention the harmony and collective bank balance of their neighbours.

If all of this seems familiar, it was the topic for one of our chats on this week’s podcast.

In the podcast we questioned the role of the strata lawyer in all this.  Strata disputes are usually unfair fights – a single owner versus the rest of the building. That’s why in NSW the government tried (but failed) to make tribunals lawyer-free zones.

In this case, the owner received a letter from the scheme’s lawyer saying the large number of emails of complaint received indicated that the owner was a vexatious litigant.

Therefore, the letter said, not only would the owner lose the case but all costs would be awarded against them, and those costs would be considerable due to the number of witnesses the lawyers intended to call.

In other words, pull your Tribunal case or we will crush you. Now, if you were in a legal battle, you might think you’d want this hot-shot lawyer on your side.  But in strata?

Wouldn’t you rather have a lawyer who says, “look, mistakes have been made, tempers have become frayed, here’s what the law demands, let me negotiate a settlement that’s fair for everyone and create a binding, legal agreement that allows everyone to get on with their lives?”

Actually, a lot of strata lawyers already do that. But you get the feeling that some others have been watching way too much TV. 

Strata law can be exceptionally dull, and it should be. The laws are pretty clear, as are their intent, and lawyers should be resolving conflict, not creating it.

However, in a typical strata dispute you will have one side arguing points of principle while the other may be defending their home. 

And you might have one side telling their lawyer “don’t tell me what I can and can’t do; tell me how I can do what I want and get away with it.”

For the record, in the case I mentioned, the owner won, the strata scheme lost and costs were not awarded.  I hope the strata scheme refuses to pay their lawyer’s bills, on the grounds that they were led into a fight that they couldn’t win.

There are enough problems in strata without disputes turning into an episode of The Good Fight or Law And Order.  Strata law should be about right and wrong, not threats and intimidation.

And if there isn’t a code of conduct for strata lawyers already, there certainly should be.

A version of this column first appeared in the Australian Financial Review

2 Replies to “Why strata lawyers need to dial down the TV drama”

  1. Avatar Whoopi says:

    Dear Jimmy and Flatchatters,

    NSW. I have also been through this abuse with opposing Strata lawyers and barristers. Not only in the form of letters but also in mediation and in the tribunal itself.
    When it came to letters we were constantly and repeatedly threatened including having letters sent to us in RED text giving us only hours to respond immediately or they would take action! A letter was sent to all of the owners on the letter head of the opposing lawyer which was false and misleading, vilifying and defamatory. The letter was not sent to us. The letter falsely told the owners we had done vast renovations without approval and we were aggressive and threatening towards trades men and that it was us that started all of the litigation. All of this was untrue but influenced the vote of the owners against us. The lawyers name was attached as the contact point for the owners to ask questions. Recently the opposing law firm threatened to send a letter to the tribunal even if we did not consent to it , which was in clear contradiction to the rules for lawyers in the tribunal and their code of conduct. Our lawyer was forced to threaten them with taking action if they persisted with this unsolicited submission to the tribunal which stated their case and was biased against us. They backed off on this one.

    We also found the lawyers were able to agitate more conflict to continue vexatious litigation and we found ourselves after winning our initial case defending not one but two cases in the tribunal. These cases could have only been agitated by the guns for hire lawyers, as the OC without a deep understanding of the loopholes in the law could not have imagined that these legal attacks were possible. The lawyers knew that there are no consequences for not complying to appeal panel orders so they just ignored deadlines for the works to be done and even then did not comply to the orders. Obviously it was a case of the committee saying we want to get theses owners so come up with what ever you can and go for it.

    After we won orders against the OC to do remediation work and they could stall( eight months ) no longer we were accused us of refusing ‘unfettered’ access. At no time did we refuse access. What this really meant was the OC were refusing to do the demolition they needed to do to get to the membrane.
    The orders said ‘Take all steps to repair the membrane’ They wanted us to do the demolition and pay for it. Also if they managed to bully us into removing tiles and planter boxes and timber decks etc. they would not be forced to replace them under Sect 126 of the act. Very clever of the lawyers and leaving us with an industrial looking lot with no landscaping , a bare unsightly membrane which is uninhabitable. We have been forced to go back to tribunal to fight to get our lot reinstated the way it was and also the get the orders complied with. The lawyers told the OC they could declare items that were not on the strata plan as unauthorised after decades, so they then tried to force us to take by laws for works which were 38 yeas old and already represented as in situ on the lot in three previous bylaws. We were accused of unreasonable refusal to take a bylaw. Yes, for work we did not do, decades old and already drawn into bylaws and acknowledged by the OC as present on the lot. Work that previous owners had never been required to take bylaws for, we were suddenly thrust back into the tribunal. The bylaw was full of items including things that did not exist or had been removed years earlier or had never really existed.

    In mediation in front of a member the yelling from the opposing barrister was so loud you could hear him through the walls, it was traumatising for us. Mediation was a bully fest of threats telling us we would not win when we had already won the case out right. In the tribunal this barrister told the member we were Evil people and my husband a liar, yes he used the word liar in the tribunal! In the Appeal this barrister lied to the members and due to this lie we lost some very small aspects of the case, not enough to lose the appeal but enough to stop us getting costs. Due to threats during an Appeal the opposing lawyer influenced the members to force us back into an adjournment and another mediation this cost us $15,000 in more legal fees and was of course unsuccessful. Their agenda was to continue to force us into mediation to cost us money, break us emotionally and financially. When we went to mediation they would not mediate but dictate.
    The lawyers would come to the AGMs and make us leave the room whilst they spoke to the owners, we had no right of reply and had no idea what they were telling the owners. The opposing lawyers even entered our property without asking for permission for access or notifying us they were entering our lot, they did not even knock on the door, they just walked onto our lot and wandered around until asked to leave, but not without a long and stressful argument. These lawyers ( not all) are behaving like bullies and cowboys they have no interest in resolution. There is no money in resolution for them.

    I have also spoken on this forum about the recovery of costs bylaw put together by a well known law firm which allows OCs to charge indiscriminate costs to owners for all sorts of things including legal costs, this is in contradiction to the strata schemes act and was passed in our building and a tribunal member put the committee and lawyer firmly in their place stating unequivocally this by law was invalid and could not be used to enforce owners to hand over money. But this bylaw still stays in place in our building and owners who are not as switched on to the law or have english a second language who are disabled or elderly do not stand a chance against this kind of strata bullying. If they want to fight this they are forced to lawyer up and go to the tribunal. We await findings for two cases and are adjourned for another case awaiting reconvening all because the lawyers are having a field day with us. I would like to say that my current lawyers are honourable and supportive and try not to cost me too much money and I am grateful for their guidance.

  2. Avatar Jimmy-T says:

    This is now being discussed in the Flat Chat Forum

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