Strata Law – Mediation requirements in NSW

14/11/2018

In New South Wales the Strata Schemes Management Act 2015 (SSMA 2015) sets out the framework for resolving strata disputes.  It provides that parties to disputes can lodge applications to the NSW Civil and Administrative Tribunal (NCAT) to resolve those disputes.

However, that framework attempts to divert parties from the full NCAT dispute procedure by encouraging them to attempt to resolve those disputes first.  It does this by providing that an aggrieved party cannot go to the NCAT without first undertaking a Mediation organised by NSW Fair Trading.  The relevant provision of the SSMA 2015 is section 227.  Section 227 provides that a Registrar of the NCAT must not accept an application made to the NCAT to resolve a dispute unless a Mediation by the Secretary of NSW Fair Trading has been attempted but was not successful or a party refused to participate in the Mediation or the Registrar considers that Mediation is unnecessary or inappropriate in the circumstances.

If an Applicant to NCAT to resolve a dispute has not complied with the precondition about Mediation, the Registrar must inform the Applicant that he or she should arrange for Mediation if the Registrar has rejected that application.

There are some circumstances where an Applicant will not be required to go through Mediation before lodging an application. Those circumstances are where orders are sought for:

(a)       an order to appoint or require the appointment of a strata managing agent

(b)       an order varying or revoking an order that varies or revokes another order by the NCAT

(c)       an order with respect to waiving, varying or extinguishing a restriction relation to the initial period

(d)       an order allocating unit entitlements

(e)       an order with respect to access to a lot by the owners corporation to inspect or repair common property

(f)        an order seeking provision of records to an owners corporation by a former strata managing agent for the strata scheme

(g)       an order with respect to the inspection of records of an owners corporation

(h)       an order imposing a monetary penalty and any associated order as to the payment of costs.

The procedure in applying for Mediation is to obtain a Mediation application form from the NSW Fair Trading website. An Applicant then completes the form and lodges it with NSW Fair Trading who thereafter contact the parties about available dates for Mediation.

Watson & Watson have highly experienced strata law solicitors who can assist and provide advice regarding strata disputes or any strata issues. If you have any enquiries about strata matters and/or you propose or wish to attend Mediation in an attempt to resolve a strata dispute please contact Richard Watson Senior Strata Solicitor or his Personal Assistant Shereen Da Gloria to discuss your concerns and seek the right advice before attending Mediation.

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.