NCAT Orders of Adjudicators 2016 Changes

09/04/2019

In 2016 the legislation in relation to Strata Schemes changed. At that time the new strata statute in NSW came into force, which was the Strata Schemes Management Act, 2016.

One of the changes that new legislation introduced was that the Hearings of strata disputes were changed from being before Adjudicators to an open Court system where Hearings were before Tribunal Members.  Adjudicators had previously decided cases by reading all the materials in a dispute in Chambers.  This meant that they did not hear evidence in Court and did not hear from lawyers in Court hearings.  

They decided the cases in their office by reviewing the evidence and Submissions in a dispute and coming to their decisions.

The new system provided that Adjudicators no longer decided cases. Instead, Tribunal Members now hear the cases in open Court.  The Tribunal Members hear from witnesses who can be cross-examined if required by the other party and hear arguments or Submissions in Court between lawyers for each side.

Under the old legislation, Adjudicator’s Orders expired after two years from the date they were made pursuant to section 172 of the Strata Schemes Management Act, 1996.  However under the new legislation there is no expiry date on the Orders made by Tribunal Members.

An example of how this change operates is with respect to Orders against people to do things. Under the old legislation, an Adjudicator may order a person to do something such as repair some property or remove an object from a common area.

However under section 172 of the 1996 Act, the relevant Order made by an Adjudicator expires in two years.  Accordingly once the Order had expired no one could take action to enforce the Order against the person who was ordered to repair property or to remove an object.

What happens to Adjudicator’s Orders which were made under the old legislation before the repeal of the old Act?  Does the Adjudicator’s Orders automatically have no limitation period once the new scheme came into effect?

A recent case in the NCAT considered this question. The Owners Corporation had sought an Order under the 1996 Act, that a Lot owner remove blinds and a fence. The Owners Corporation was successful and obtained an Adjudicator’s Order that the Lot owner remove the blinds and the fence. The Orders had a duration of two years and so expired on the second anniversary of the orders.

One week before the expiry date the Owners Corporation sought Orders to enforce the removal Orders made by the Adjudicator.  Watson & Watson received instructions to act for the Lot owner.  The hearing date for this application was seven months after the expiry date on the Orders.  As a result under section 172 of the old Act at the hearing date, the Owners Corporation could not enforce the Orders because the Orders had expired.

At the hearing of its Application to enforce the Orders, the Owners Corporation argued that under the new scheme the Adjudicator’s Orders were converted into Tribunal Orders. Since there were no expiry dates on Tribunal Orders then the effect of the new scheme was that section 172 no longer applied to the Adjudicator’s Orders.  Consequently the Owners Corporation could still take enforcement action on the Adjudicator’s Orders after the two year period had expired.

The Tribunal Member who heard the case however decided that section 172 still applied to the Adjudicator’s Orders after the new scheme had come into operation. He said that the Adjudicator’s Orders had the two year expiry date on them and this context continued after the old scheme had been replaced by the new scheme.

The consequence of this was that by the hearing date of the enforcement action commenced by the Owners Corporation against the Lot owner the Orders to remove the objects, no longer applied. Accordingly the Owners Corporation could not enforce the removal Orders which the Adjudicator had made over two years previously.

Watson & Watson conduct strata disputes on behalf of Lot owners and Owners Corporations.  If you have any queries or concerns regarding Adjudicator’s Orders under the old legislation, the enforcement process and how they are currently deal with, please contact Richard Watson Senior Strata Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter and alleviate your concerns.

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

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