An important warning for Owners Corporations in NSW
Published: 12 March 2007.
By Small Myers Hughes Lawyers
In the recent case of Seiwa Pty Ltd v Owners Strata Plan 35042 1157, the NSW Supreme Court gave a judgment which could be considered a wake up call for owners corporations in New South Wales.
Seiwa Australia Pty Ltd (Seiwa), the owner of a unit in this particular Strata Plan sued the owners corporation for damages and injunctive relief. Seiwa claimed that the owners corporation had failed to carry out its duty to maintain the common property and as a result of this failure, the owners corporation was said to be in breach of section 62 of the Strata Schemes Management Act 1996 NSW.
Section 62(1) of the Act states that “an owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation”.
The defective common property in this case comprised of two aspects. The first complaint was the rusting of steelwork that formed the framework of the enclosed balcony of Seiwa’s unit. The second, was water penetration from the patio into the living area of the unit, as a result of a defect in the water proof membrane.
The owners corporation was alerted to both problems in March 2003 but did not remedy the rust problem until August 2005 and the leaking water proof membrane as at the date of the court case had still not been rectified.
The Court gave judgment in favour of Seiwa, asserting that section 62(1) of the Act imposed a strict duty on an owners corporation to maintain and keep in repair the common property. The Court said that any breach of this section is a breach of statutory duty and gives rise to a private cause of action under which damages may be awarded to a lot owner.
In defence, the owners corporation argued that it had taken all reasonable steps to perform its duty under section 62 and that Seiwa was guilty of contributory negligence. However, the Court held that both these issues were irrelevant because of the strict nature of the owners corporations’ duty under this section of the Act. The owners corporation had simply not maintained the common property and were therefore in breach of the section.
The owners corporation was ordered to pay the amount of $150,000.00 in damages to Seiwa for the loss of use of the unit, and depending on whether the owners corporation complied with a mandatory injunction that the balcony be rectified within 3 months, awarded a further $250,000.00 to Seiwa in respect of a reduction in value of the unit should the repairs not be completed in that time. The owners corporation also had to pay Seiwa’s legal costs.
As a result of this case, all owners’ corporations in NSW, including their building managers and committee members need to be responsible and proactive in their approach to maintaining all common property areas. Owner’s corporations owe a duty of care to each lot owner to maintain the common property and a failure to do so, as seen in this case, could hold serious ramifications.
Reply from: H Ackroyd
4:05pm Friday, 20 July 2007
My situation was I inherited a neglected and run-down unit in a two unit strata scheme. I decided to live permanantly in the unit. The owners of the other lot were investors. They offered to buy my unit. I refused. They had also offered to buy the unit from my mother who left it to me. They opposed all my attempts to have the long overdue repairs attended to. I was forced to take out four applications with the CTTT. I was successful in each one. However it took six years and two s.162 compulsory managers to have the repairs completed. In the process the owners corporation was exposed to possible negligence claims had a member of the public tripped on the broken pathways. This was a horror story of the investors from hell. After they had lost their appeal they lodged an action against me and the OC in the Supreme Court pursuant to s.52 of the SSFDA to terminate the strata scheme. The Nature of the Case was described to the court as “whether the Supreme Court should terminate the strata scheme pursuant to the Strata Schemes Freehold Development Act on the basis of a dispute between the two unit holders regarding repair and maintenance to the common property.” Their legal advice was that two unit schemes are "joint ownership" and as such the Supreme Court could order a forced sale pursuant to section 66G of the Conveyancing Act! In their summons they asked that the land on which the strata scheme stands be "awarded to them in estate fee simple". That took another 12 months before it reached the pre-trial hearing. They withdrew when the judge made it abundantly clear he was not happy with the action. He ordered a mediated settlement. I got everything I wanted. They then sold out. However I am left traumatised by the whole process and it will take me many years I feel to recover. I consider the CTTT takes too long to resolve issues and allows frivolous appeals. This was an unambiguous S62 SSMA matter. I feel the law needs changing to protect people such as myself who are just trying to comply with the mandatory requirements of S.62SSMA. I should not have had to go through that in my own home.
Reply from: Nick
2:54am Saturday, 21 July 2007
Wow - that really is a horror story! Can I ask what state this occured in?
Reply from: H Ackroyd
10:31am Saturday, 21 July 2007
Reply to Nick - it occurred in N.SW. I might add that there was no legal basis for the action, there was no Statement of Claim, the original Summons was seriously deficient and three affidavits were all ruled inadmissable - this greatly displeased the SC judge who immediately ordered a settlement. However, it took 12 months before that stage was reached and I was severely traumatised by the nasty nature of the case.
Reply from: H Ackroyd
10:53am Saturday, 21 July 2007
Reply to Lynchc - If someone fell on your slippery stairs and you are insured, your insurer could argue that you did not maintain the steps and this led to a health and safety hazard. In that case your owners corporation would be liable for any damages. In our strata scheme the insurer refused to give us cover unless the broken paths that had crated a trip hazard were repaired.
Reply from: lynchc@tadaust.org.au
11:33am Sunday, 22 July 2007
To H Ackroyd
Thanks. I thought so, although it offers me no consolation, as I have been agitating for the repair of the steps. And yet I would be liable.
And mediation offers no joy, as the other party can refuse mediation, and then I am stuck with a whole raft of other actions to pursue them.
You have been through the mill, and although you've won legal justice, the personal repercussions have been considerable.
The process must have been like an ongoing nightmare.
Reply from: H Ackroyd
8:49am Monday, 23 July 2007
Reply to Lynchc - Thanks for your comments. If you do not want to go through the process of obtaining an order against your owners corporation, you can remind your executive committee that under the Owners Corporation's insurance policy there is a "Duty of Disclosure". This means they must tell the insurance company if there is anything that effects the insurance - such as your health and safety issue with the stairs. The Duty of Disclosure applys to all members of the owners corporation. The executive committee must not reinsure if they are aware of a problem that could effect the insurance. If that is unsuccessful, the way to get your stairs repaired is to just let the insurance company know of the problem with the stairs. They will then write to your owners corporation and threaten to withdraw the insurance unless the repairs are done.
Reply from: H Ackroyd
9:35am Monday, 23 July 2007
Further reply to Lynchc - another thought. If you have a managing agent let them know as well. Your managing agent would be renewing the insurance policy on behalf of the OC. Under Duty of Disclosure he should not renew the policy unless he tells the insurance company there is a problem with health and safety if he has been made aware of it. Managing agents receive a commission from insurance companies and this mounts up and is quite considerable. If an insurance company is made aware of a problem and the managing agent has not told them under Duty of Disclosure his commission is put at risk, not just from that one policy but from all other policies he holds under that particular company!
Reply from: lynchc@tadaust.org.au
4:09pm Wednesday, 25 July 2007
To H. Ackroyd.
Thanks for your reply. I had wondered about the Duty of Disclosure - it's pretty well specified on travel insurance!!
Yes, we do have managing agents, but I think you can leave out the 'managing,' as they passively engage in management, and appear to have strong bonds with other, longer term committee members. I know this can be remedied, but the stress of sorting out the many bizarre issues around this place is a strong disincentive for me to stick my neck out there. I tried to get mediation going on these issues, but the other committee members refused to come, and the rigmarole around that was daunting.
I'm going to hit first with the Duty of Disclosure suggestion.
You've been really helpful, and it's good not to feel so isolated, and the 'difficult committee member.'
Cleo Lynch
Reply from: H Ackroyd
9:35am Thursday, 26 July 2007
Reply to lynchc - it sounds as if you have a "difficult committee", As far as managing agents are concerned they are always looking have their delegation renewed each year, so they align where they perceive the power lies. Under the Strata Schemes Management Act (NSW) anything done by a managing agent is said to have been done by an owners corporation - so they have a perfect let out clause which absolves they from responsibility. However as a managing agent has an agency agreement with the OC they do have a Duty of Care to the OC under the Trade Practices Act 1974 (Commonwealth) in relation to the supply of services and in some jurisdictions under Fair Trading Acts (in NSW Property Stock and Business Agents Act). You could always remind them of this. If your OC has refused mediation and you have a legitimate report on the H&S status of your steps - you can immediately apply for an adjudicator's order (NSW). Take photos, use your report etc. as much evidence as you can muster. The other alternative, if you have not already done it and I am assuming you are in NSW, is to lobby and get some other owners onside. You can requisition an EGM if you can get together owners entitled to vote in respect of the lots the unit entitlement of which is at least one quarter of the aggregate, putting your motion down to fix the stairs. That way you will not feel so isolated. You can put a letter in each letterbox asking if they would support the motion. If all fails, the only alternative and to give you some peace, is to get an adjudicator's order against the OC. Your steps will be fixed. However you will have to put up with being sent to conventry by the losers - I will bet however that you will not have any more problems again! All the best to you.
Reply from: lynchc@tadaust.org.au
3:47pm Thursday, 26 July 2007
Yes, those possibilities have occurred to me. It is my impression that other owners are happy to give support, without taking too much responsibility. If they feel strongly about it, they could use their vote in the election of the exec. committee, or they could canvass for another managing agent. Frankly, I'm not all that enamoured of being on committee, except to care for what is my home. I've managed to get the extra garbage bin released from the storeroom and have the upstairs laundry released from being the private, locked storeroom for one owner. Once I get the stairs sorted, they're on their own!! But I've appreciated all your advice, which I've found very helpful. Thank you.
Cleo Lynch
Reply from: Prem
7:08am Tuesday, 15 January 2008
I have stairs that lead from a shared area directly through my verandah floor that is on my title. Who owns the stairs? It could be argued I have exclusive use as they are only used by my unit, but this is not specified. The unit is in Qld.
Reply from: John
10:50pm Wednesday, 07 May 2008
This is the site that could answer all my prayers. From what i have read so far you are all living in the "garden of eden" compared to the SP where i live. I understand where you are comming from because our managing agent is straight from hell & has teamed up with another devil to give our OC hell. After 20 yrs of torture by our SP mangers my health is failing and im' at wits end.
• Our strata manager receives bonuses form Insurance Co.
• Our manager receives bonuses from employer
• Our manager receives kickbacks from contractors
• Manager has “preferred” contractors list
• Manager lets preferred contractors check our bank account
• Manager fails to have contracts made up for work over $1000.00
• Our manager allows poor quality work by contractors.
• Manager organises work on building without committee’s knowledge
• Manager defends contractors & Not the owners
• Manager allows illegal work to be carried out
• Manager helps self to our funds
• Manager spends our money on things we did not order
• Manager ignores owners requests for help
• On complaining manager abuses the complainant
• Slow or no response to emails we get out of office replies
• On telephoning I get put on hold
• On visiting office I find an impenetrable Fort Knox
• Minutes changed by manager
• Minutes not recorded
• Manager drums up proxies for herself
• Manager with holds important letters
• Manager denies service
• Manager uses Section 29 Manager uses Schedule 3, clause 10
• Manager fails to address by-laws
• Manager fails to keep the books
• Manager refuses requests by majority vote of executive committee
• Manage neglects owners requests for common property & repairs
• Manager charges $1000.00 above management fees
• Manager misleads committee members rorting the system
• Denial of service
• Manager lies
Reply from: Nick Buick
7:09am Thursday, 08 May 2008
If you have proof of all (or even some) or these allegations, perhaps you should discuss with the body corporate and your solicitors. There's a reasonably solid act, underpinned by strict licensing laws, that are in place solely to protect you, the owner. With so many legitimate courses of action available to you, why simply moan about the situation under an anonymous name on a public forum?
Reply from: David
6:12pm Wednesday, 12 August 2009
Hello Nick
I lease a unit in a body corporate block of units and have done so for 6 years. We are very qiet tenants and the problem I have is that approx two years the unit above me was sold. The unit in question is a large unit and it covers the area of the two units below.
Since the residents moved in I have made a number of complaints through my agent regarding the noise generated when they walk on the polished floor boards. There is a lot of history in this matter so I will keep it short.
The new owners have become secretary of the committe and consequently all complaints are now being ignored.
My question is regarding the strata approval of the floor boards
by the previous tennant, whom I might add I never heard her walking about, is "does the body corporate have to disclose if the flooring has been strata approved and the duty of care that the body coporate has in relation to other residents, tennants"
This problem has now become personal with the tennants now going out of their way to create excessive noise, name calling, statements to the effect that I should go and live somewhere else, having loud parties and playing loud music.
Hope you can help
David
Reply from: John
11:04pm Friday, 14 August 2009
Hello Nick Buick,
Yes I have proof of the things i say, enough solid records to sick a battleship. After years of getting nowhere I decided to document everything i noticed that was going on. I took many photographs and recorded and documented everything and kept all emails both incoming and outgoing so as i would have the proof needed in a court of law to support my claims if needed. I have photos of damage to our property and proof of neglect by our former Strata Manager. I have the timeline of events.
After 3 years of reading as much material as possible about Strata Schemes on the internet and with help from the Department of Fair Trading, i gathered momentum against the manager from hell and finally they were sacked at the 3rd attempt.
That was not easy sacking them because the manager withheld proxies that were unfavourable to them, refused to accept other proxies from legitimate owners, one was forced to send Solicitors letters claiming their right to vote. The manager also introduced invalid proxies in favour to them and insisted that an unfinancial owner vote in the managers favour and was offered a contract for $2,500.00 if the vote was favourable. But I kept the fight going and am pleased to say, we now have a wonderful managing agent.
Because I was the only owner living here, all the rest were investors I found it difficult to get my points across because the Strata Manager refused to give the names and addresses of the other owners but eventually succeeded. The Strata Roll was out of date by 9 years.
As far as legitimate courses of action goes, you have to understand that I do not know the Law or how to have the Law is enforced except for the fact that it costs $500 per hour for a Solicitor Plus dispersments and I simply cannot afford these fees.
However I know ten’s of thousands are affected in the same way I was and I would love nothing more than to take out a class action that could run into hundreds of millions of dollars in damages and have the former Strata Manager put in goal. Some Laws I believe were broken by our former manager carry prison sentences up to 10 years.
Even though DoFT and DoC helped out its nearly impossible to get the manager to front up because I had to give them 2 weeks to answer and if the manager failed to answer the DoFT gave another 2 weeks. Of course the Manager had control of the Executive Committee and it was asked that the Executive Committee approve action, of course this never happened.
I realize this is a public forum and that I needed help and was hoping someone would. Unless someone in the Legal profession can help me out I will have to leave it here. But if someone wants to help me sue for damages I will go all the way. Of course there are many things I may not say in this forum like dates, times, names, addresses etc;
Reply from: Nick Buick
11:04am Sunday, 16 August 2009
We seem to be getting flooded with complaints from owners in various strata titled complexes having disputes with managers and their body corporates. I'm not sure why, now, we're suddenly receiving so many complaints, all I can say is if you need legal advice, please contact a solicitor who deals in these matters, for your convenience, we've put together a directory of such firms: http://www.thepropertymanager.com.au/content/cms/management_rights/100038/
Hopefully this will help some of you resolve your matters, best of luck.
Reply from: H Ackroyd
12:04pm Sunday, 16 August 2009
Reply to Margaret Forbutt
In our strata scheme in NSW we have exactly the same problem. Our scheme backs onto Council land. To enter or exit our property one has to traverse this land. The Council does not cut the grass. As a consequence the strata scheme maintains the strip of land by mowing once a month. In the summer in peak growing times mowing is sometimes more frequently.
This is an on-going expense from the administrative fund and that is how it should be.You really have no cause for complaint as unfortunately it is an ongoing expense for your strata scheme.
In NSW strata schemes now have to budget ahead for 10 years. As a consequence strata levies have risen considerably for many schemes. The days of strata levies of $250 a quarter are now long gone. Strata living has now become quite expensive.
Even though your strata scheme is only a two unit scheme, the services of a strata manager would be prudent. The Strata Schemes Management Act in NSW is complex and onerous duties are imposed on owners corporations under the Act. In a small scheme having the services of a strata manager removes the personal aspect from the management of the scheme and should make for a more harmonious management.
May I suggest that if you live in NSW you contact the Department of Fair Trading help line on strata matters by telephoning 133220 and they will tell you what your options are, if any.
Reply from: Margaret Forbutt
12:18pm Sunday, 16 August 2009
Thanks for your speedy reply.
Regards Margaret
Reply from: Darren White
11:13pm Thursday, 03 September 2009
Hi There,
That was an interesting article of interest but can i just say from a Trades perspective, that as a Professional of 20 years in my business i cant stress enough, through my own deducement that even we have to press the Strata Managers to get something done about issues, that we see.
Even on the Lot owners behalf as what they see "falls on Deaf ears"
Ive seen water ingress that has caused such high contents of mould that ive had to wear a mask just to identify the issues ive seen dodgy people that are supposed to be qualified butcher units and they still are given more works by a strata based on costs !
Water ingress is something thats not to be messed with as it can have far reaching affects on a lot and or the building.
I think the strata managers at some organisations should also do some sort of basic trade course as well as there relavent qualifications for strata, so they at least have some sort of mind set on how to quantify a quote when its received, particularly in my industry.
Being told that your too expensive , is a weak excuse when dealing with complex issues, and in waterproofing i'm afraid that there is no temporary or quick fix.
I always try and get a committee to meet onsite to explain the complexity of an issue and the why's and how's of whats required.
Regards
Darren
Reply from: ian
9:54pm Monday, 07 June 2010
As I have just bought a unit in a new building, only the second one to sell, is it the developer who takes on the legal role of the
BC ? and when does the BC come into effect ? I'm looking to have some defects repaired that have come to light since I moved in.
Thanks
Reply from: Nick Buick
8:46am Tuesday, 08 June 2010
I believe the developer establishes the body corporate on settlement. Although there's also a fix-up period with any new development, if you point out the problems to the developer, they'll probably just fix them anyway.
Reply from: H. Ackroyd
9:01am Tuesday, 08 June 2010
Ian a very good website for you to get more information about your problem is ocn.org.au
It is the website of owners corporations in NSW. They have very good information seminars at the moment that could assist you.
Best of luck
H. Ackroyd
Reply from: John
3:44pm Wednesday, 09 June 2010
Hello Nick Buick
Thanks for the advice but, I have proof, a paper trail, timeline, photographic evidence, help from the DoFT, DoC, CTTT, etc; and have put these to the Owners.
‘Reasonably solid act’ does not cut the mustard because unless a person knows all the laws, the Strata Managers are protected by including ISTM, Strata Schemes Management Act, Stock and Station Agents Act, These mentioned Acts do not protect the owner, they protect the Strata Managers and if manipulated by a crook ST manager its very difficult to have anything done because they do know all the loopholes and an unsuspecting new ST owner is at their mercy.
Quite simply a crooked ST Manager can set themselves up as Chairperson, Secretary and Treasurer, hold committee meetings without the committee present and using proxies addressed to the Secretary virtually do what they want.
They use Section 29, of the Strata Schemes management Act, 1986 and Schedule 3, Clause 10. Even though the ST manager was asked not to use Section 29, they still did against the Executive Committee’s orders (not enough UE), and don’t forget this brings into play Unit Entitlements, if you do not have enough UE the ST manager does not listen to anything you say and you get the brush off.
It took me years to unravel their crooked dealings and I challenged them in court and won. I was awarded thousands of dollars by the CTTT and had the managing agent dismissed. Thanks for classifying me as a moaner but that is what I was up against with the crook manager. I do know it’s a public forum and that is my real name. Each one of my complaints can be verified with proof that will stand up in a court of law and now I know what is really going on I am going to help others.
I may be simple and I moan when I’m hurting, but overall your forum is a good place to start if others like me who need help. We now have a new Strata Manager and $20,000.00 more in our Admin and Sinking funds than we would have had if we did not dismiss the crook ST Manager. Plus all repairs have been carried out and maintenance is paid up.
Kind Regards
JOHN
Reply from:
09 June 2010
John, the managers aren't even allowed to vote as Body Corporate even though they own an apartment and are therefore part of the body corporate. It's just not the case. Let alone start setting up false proxies and electing themselves chairman and treasurer and so forth. Any manager who committed such serious improprieties would be destroyed in a court of law, lose their license, lose their contract and probably lose a heck of a lot of money in fines as well. That seems like owners being protected by a pretty solid act to me. All you need to do is use it. And no you don’t need to know all the legislation, you just need a good solicitor. Sounds like you got one and, of course, won. I’d advise anyone reading this who is dealing with even half the issues you’ve outlined to contact any of the solicitors who write for ThePropertyManager.com.au and I'm sure they'll be able to help.
Reply from: John
11:56am Thursday, 10 June 2010
Hello Nick,
Yes I know managers are not allowed to vote but we are dealing with a manager that manipulates the Law of proxies to take advantage of the Owners Corporation and its duly elected Executive Committee and this is how they do it:-)
At our AGM the first thing the manager asks is for the chairperson and committee to vacate their seats and the manager will chair the meeting. Not knowing the law back then, we vacate and let the manager run the meeting. Sounds good so far, but..
The manager has already taken care of the proxies because they receive them in the mail and make sure that any unfavourable proxies are not allowed by declaring them invalid. Only proxies favourable to the management are allowed to be tabled at the meeting. The manager has thrown valid proxies back in my face.
I have on tape an argument with the manager that a certain proxy is valid because the owner is financial and entitled to vote. The manager refused to accept this proxy and the owner had a solicitor write up a letter to the manager threatening legal action if they did not accept the proxy.
But it was too late because the AGM was over and the manager disallowed the vote at the AGM. This proxy vote would have dismissed the manager and a new manager appointed, but...
Also the same manager allowed an unfinancial owner to vote because their vote was favourable. I have a tape recording of this as it happened, also the unfinancial voter was offered a bribe $2,500.00 right in front of the other owners if the vote was not to dismiss the manager. You with me so far, yes I have this on tape and witnesses.
At our AGM the manager calls for 'Nominations' for the committee and as you should know if a person is nominated and voted in they are 'elected there and then' on the spot and duties commence at the termination of the AGM. But...
Our manipulative manager holds a second meeting immediately following the AGM where its claimed 'Nominees' may be Appointed??? Get your legal head around that one.
Its at this second meeting immediately following the AGM where our manager takes control of our committee. Because proxies had just expired at the AGM they are no longer valid for this second meeting. Because the committee is only 'nominated' and not duly 'elected' and are now only 'Nominees' according to our manager, the manager now invokes or helps themselves to Section 29 of the Strata Schemes Management Act 1996.
And if you read the Act you will see that what I am saying is correct. The manager sets up a Chairperson, Secretary and Treasurer because do not forget the committee is only 'Nominated' according to the manager and not yet elected. the manager states "Nominees' may be 'Appointed' at the second meeting. I have this in writing.
Yes I want this manager destroyed in the courts because they are causing so much damage you would not believe it unless you actually saw for yourself. After going through laws and penalties I believe some of the jail time may be up to 10 years.
This person is very high up in the organization that manages tens of thousands of properties worth approximately $8 Billion.
I will hand over the proof to any legal firm who wants to take out a class action to recover some $50,000,000.00 in sinking fund fees each year, or even double that amount from the management to have their properties repaired caused by the neglect and breach of Fiduciary duties of that manger.
This manager will defend their contractors to the hilt no matter how faulty their work skills or how much damage they cause to Strata Title properties under their management. If others are in the same position and I am sure they are we, have to have this manager put in jail and recover your money.
Although I have since managed to dismiss the rotten manager but do know they must be stopped because they are criminals and hurting a lot of people. Maybe if any of the solicitors are interested they may contact me you have my email. I have proof of every claim I have made and will swear in an affidavit to be true and produce this proof in a court of law.
JOHN
Reply from: Jeff
12:17pm Monday, 16 August 2010
Nice article.
I have a query that might have been relevant to that case, but I can't find referenced in all the available information.
As members of the Owners Corporation, what is the extent of each owner's liability? It seems to me that it is unlimited - in other words, if the Owners Corporation manages to incur a debt of $350,000 because they lose the case, and if the insurer claims no liability because the conditions of their policy have been breached, then each owner becomes liable for their share of the debt. I guess the process is that the OC would be ordered to raise a special levy, and the levy becomes an ordinary debt of the owner.
That becomes a real wake-up call.
In my case, the OC is meddling in a dispute between a resident and their neighbour in an adjoining SP. I maintain it is a police (or possibly POEO) matter and nothing to do with the OC of either property, as no by-laws are involved, and it is nothing to do with property. I am concerned that the OC might be penalised under anti-discrimination laws, or possibly harrassment laws, because it is making comments about who was right and who was wrong, and issuing threats of action when it has no authority to take any action. By being a member of the OC, I am (effectively) being dragged into a dispute that has nothing to do with me, that I have no authority (directly or indirectly) to do anything about, and which exposes me to risk of financial penalty.
Of course, there are several avenues available to me to get the OC to stop their meddling - but by that time the offence has been committed and the damage has been done. An out-of-control power-crazed committee is a dangerous beast that can create significant financial risk for every owner.
Reply from: Frank Higginson
1:27pm Monday, 16 August 2010
Hi Jeff,
I could not agree more. And you are right - a $350,000 judgement against the body corporate means every person is liable for their percentage in the same percentage that they pay levies. It is not a joint and several liability - everyone has to just chip in their share - not one person would cop that lot.
If you think what they are doing is unreasonable, make an applicatiion to have them stopped!
All the best
Reply from: Heather
12:00pm Monday, 04 October 2010
My OC protected a bully who refused professional advice that my balcony required replacement after it 'popped'. It was more than 20% catastrophically lifted, broken up, and 80% drummy, and lifted from the slab along the entire front edge. There was no waterproofing, and I was concerned that water would go into my unit, which was under very expensive renovation. The balcony was obviously unsafe.
After more than 2 years trying to get the bully to fix it I fixed it myself with tiles approved by most of the owners. Actually only one owner ever said she didn't want them, and she had been lied to by the b-man, told we had enough original tiles that I should use, but of course that was proven to be a fabrication also. The OC took action against me in the CTTT, and of course they lost.
I lost prime time rent, and paid all the expenses for repairs which became essential so I could get an occupation certificate to live in my home. I am now recovering this in the local court, and the OC has admitted they breached the Act.
The OC's policy has legal defence insurance. (I got an order to regularise it when I found the 'bully' had insured only to 66% of the mandatory valuation - so I examined the policy at the time.)
The OC is fighting my action. They don't seem to understand that their insurance would cover the non-action of their officers, who had independent professional advice in writing that the balcony required replacement. So all owners will have to pay even more because of a couple of ill-informed intransigent people. Several owners are elderly and don't understand the issues. The 'bully' has sold out and left the building!
In case you think I'm the 'moaner', this bully had a reputation spanning decades. My predecessor in title was too intimidated to walk outside her rear balcony's gate, another resident has told me she would not speak with him and hadn't done so for many years since he directed how she renovated her unit (!), and I needed medical attention. There were five police reports lodged about him - and yet he continued to control things because he controlled the votes of several elderly ill-informed women in the block, which gave him the proxy numbers. Because this has been going on now for years there is no-one except myself that has the full history - and new residents dont bother to find out.
The agent won't help. I put in a S.162 because the former agent permitted the illegal activities of the then Chairman. That agent resigned immediately. The Chairman then palled up with someone else and they appointed a new agent before the S.162 was heard. So the CTTT would not appoint an independent agent. The current EC will not speak with me, so they only have the toxic, untruthful excuses of the person whose failure to act caused the problem. I have offered my records on several occasions, but they prefer to remain uninformed.
Any advice? How can I get at least some of the funds we lost back, and get some sensibility into this OC? Im sure the insurance company would rather quit the exercise than pay all the legal defence costs they will have to pay, plus our costs, if they knew what was going on.
Heather
Reply from: Jim Blauh
10:15am Thursday, 14 October 2010
ENQUIRY: Over the last 10 years the complex I live in was
managed quite well. Only when I realised that in all that time
only the chairperson and the strata manager was negotiating all
contracts (no other committee member was ever involved),
and figured out that some of the deals were not so good,
I became more pro-active (business is not my strongest point
(I am into computers). Because there were four CPAs on the committee,
I assumed they were better equipped to deal with accounting and
similar matters.
Now, go forward to this year. Over several committee meetings a bad
proposal to run business on the common property was discussed for
around 15 minutes in total. It was meant to be discussed much more, but
the chairperson grabbed the opportunity and forced the extraordinary
general meeting. I worked very hard over two weeks and managed to win
enough proxy votes to defeat the proposal.
Eight out of nine executive committee members were against the ninth
one, who himself managed to educate owners and ensure that the bad
deal does not go ahead.
The proposal process was totally riddled with "holes" and did not
follow Department of Fair Trading guidelines and regulations.
During that process, eight members actively prevented the ninth member
to pass more information to owners, tried to bully owners by presenting
incomplete information, gave misleading data that seemingly proved the
deal was "good for owners".
They lost, but they were unrepentant and continued to "blame"
owners for rejecting the proposal. I tried to mediate with them
and ask them to justify their position, they all refused to talk.
14 emails, three committee meetings and one AGM - still no answers
from them!
Apart from Department of Fair Trading, is there any good
legal team that would take this case on a "no win no pay" basis.
I am fighting a huge moral corruption and it looks like
only money can "buy" the truth. I cannot proceed that way.
Any decent advice? Give up and let bullies win? Or, is there
someone with legal skills who can help and get paid when the
case is over? Maybe I am dreaming about justice?
Jim
Reply from: John
3:43pm Thursday, 14 October 2010
Hello, I keep getting emails that somebody has replied to my comments, but nothing is addressed to me using my name. I can't reply to anyone interested if i am not sure you are addressing me and the specific subject material.
John
Reply from: Synthia
5:56am Wednesday, 14 December 2011
I want to use a tape recorder to record what was said and resolved at a strata general meeting in NSW, as some of the resolutions are not recorded in the minutes. I have been told that it is a criminal offence to do that. What are my rights?
Reply from: Nick
9:48am Wednesday, 14 December 2011
In QLD it is legal to tape record a conversation provided you are party to the conversation and it is for legal purposes.
I've done this myself many times to resolve disputes with the council, government workers, neighbours, etc. Works a treat. Not sure what the laws in NSW are, I'd say you should check the privacy acts in your state.
Reply from: John
11:22am Wednesday, 14 December 2011
To Synthia
Hi, as the Chairperson i placed the tape recorder in full view of everybody and told them i was recording the meeting. No complaints, so i recorded everything.
Although when i had the building inspectors here from CTTT they demanded i switch it off or they will not proceed with the meeting. I switched it off and still won my arguments against the shoddy builder and a large amount of money.
Of course you could accidently record with a hidden recorder you forgot was turned on, but i am not sure if that is an invasion of privacy. Some new digital recorders are very small and are easily misplaced and switched on.
I think its best to be up front and honest, that way they have no comeback. Keep your own minutes, Date, time, location, proxies, attendance, agenda, and resolutions. They must all be finacial for their vote to count.
If you believe the meeting is a sham you may always get help from DoFT.
The main thing is the Chairperson may dismiss or amend some resolutions for any number of reasons and that is legal.
Check out the Strata Schemes Management ACT 1996
http://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/
It has sections on how to run meetings.
http://www.fairtrading.nsw.gov.au/Property_agents_and_managers/Rules_of_conduct/Stock_and_station_agents.html
Kind Regards
John
Leave a comment
248,978 pages have been viewed from this website for February 2012. Please click here if you'd like to reach our audience..
The information contained in this web site is for general interest only, it is not intended as legal advice, nor are we qualified to provide such advice. Users should always seek professional advice from qualified solicitors.
2012 Body Corporate Quickbites
Focus Property Management
Rental Express
Bill Buddy Pty Ltd
HiRUM Australasia PTY (Reservations & Trust Accounting Software).
Air Systems Duct Cleaning
Australian Resort Management Sales
Cairns 
Kapitol Brokers
Liz Lavender 
MR Sales
MRB
Property Pacific Real Estate
RAAS Rights
Resort Brokers
RnR Strata Sales
Terry McMiles
Think MR
Bird Walker McDonald & Assoc
Hynes Lawyers
Short Punch & Greatorix
PCS Finance
NSW Real Estate Training College
Property Training QLD
Barclay MiS
PB Insurance
A Professional Relief Managers or Management Team
10:13am Tuesday, 10 July 2007