Strata Law – Adjudicators v Tribunal Members – How Strata Disputes are dealt with in NCAT and time limits on Adjudicator’s decisions

07/11/2018

On 30 November 2016 the new strata schemes regime came into operation in New South Wales.  This was set out in the Strata Schemes Management Act, 2015.

The legislation made changes to the way strata disputes are heard by the New South Wales Civil and Administrative Tribunal (NCAT).

Prior to 30 November 2016, when parties to a strata dispute could not resolve their differences one of the parties would be able to file an Application at NCAT to seek a resolution.  The Application would not be heard in an open Court but it would be dealt with in Chambers by persons called Adjudicators.  The Adjudicators in their chambers (or office) read the relevant documents submitted by each party and make a decision based on the documents provided.

The main observation one would make about a hearing of cases in Chambers was that the parties did not attend the Hearing so the parties were unable to make oral submissions to the Adjudicator and could neither cross examine any witnesses who had provided evidence.

If either of the parties disagreed with the Adjudicator’s decision after it had been made, they could appeal to NCAT and have a Hearing about whether the Adjudicator’s decision had been correct.

The new regime changed this procedure substantially in that when parties to a dispute go before NCAT in an attempt to resolve the dispute, the case no longer is before an Adjudicator but instead is heard in an open Court room by a Tribunal Member.  Accordingly, hearings are carried out in a similar fashion to a Court case, with witnesses attending in person to give evidence and to be available for cross examination and for provision of submissions on the evidence and the law. 

One interesting but important fact that has arisen about the Adjudicator’s decisions is the “shelf life” of orders made by Adjudicators.

Under Section 172 of the old Strata Schemes Legislation, that is the Strata Schemes Management Act 1996, the orders of an Adjudicator had effect for only 2 years.  It was expected that the person who had been ordered to perform certain tasks would do this within 2 years.  If the other party wished to lodge a complaint about the conduct of the party subject to the order, they had to do so within 2 years.

However Section 172 was repealed by the Strata Scheme Management Act, 2015 which took effect from 30 November 2016.  There were possibly many hundreds of orders made by an Adjudicator which had been made by Adjudicators prior to 30 November 2016 which continued in existence after that date.

The question is whether there is still a 2 year limitation on those orders made by an Adjudicator or whether those orders have been converted into something more lengthy.

This occurred as a result of the provisions of Schedule 3, Clause 9 of the new strata Act which states that orders of Adjudicators which were in force at 30 November 2016 are treated as Tribunal Orders from that date.

Some people have argued that the effect of Schedule 3, Clause 9 is that new orders have been created by this provision so that Adjudicator’s Orders have been converted into Orders without any limitation period at all, namely they continue forever.  This occurs as there are no limitations on Tribunal Orders.

However in 2017 NCAT in a decision called Anderson decided that the Adjudicator’s Orders lasted for only 2 years.  This is because Schedule 3, Clause 9 did not convert Tribunal Orders into orders with an indefinite duration. It merely deemed Adjudicator’s orders to be Tribunal orders.

NCAT in the decision in Anderson’s case held that this is because of section 30 of the Interpretation Act which provides that things “done” under repealed legislation continue to be “done”.  Orders of Adjudicators are deemed to be matters done under repealed legislation and so those Orders continue to be Adjudicator’s Orders for a duration of only 2 years.

This issue may be relevant to issues in Strata disputes where one party seeks to enforce an Adjudicator’s Order and the other party argues that the Order has actually expired and there is no need for the Order to be complied with.

Watson & Watson act in Strata Scheme matters and can assist you in advising on strata disputes and conducting Strata Scheme litigation in Tribunals and Courts.  Please contact Richard Watson Senior Strata Lawyer or his Personal Assistant Shereen Da Gloria to discuss your concerns or queries if you are faced with the dilemma as to the limitations of NCAT orders and whether they are out of time or still applicable in your matter.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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