NCAT Strata Adjudicator authorises works and exclusive By-Law in favour of Lot Owner against wishes of Owner with 50% interest in Strata Lot

09/10/2015

In June 2015 the Owner of a lot in a Strata Plan consisting of 4 valuable/residential lots in a harbour side suburb of Sydney, approached Richard Watson, Strata Lawyer in Sydney to assist in relation to an Adjudication Application for approval for significant works and other related matters including an exclusive by-law which had been rejected on numerous occasions by the Owners Corporation.  The refusal was effected by a negative vote by the Owner of 2 lots which had a 50% unit entitlement in the Owners Corporation.  One of the Lot Owners (Lot 3) approached Richard Watson following years of discussions to have agreement for works in similar form as had been previously agreed for others within the small complex.  The Owner of one lot when the opportunity arose purchased a second unit and therefore held a 50% unit entitlement to vote and utilised that vote to oppose plans of Lot 3. 

There were many discussions and the 50% lot owner indicated her real objection to the Owner of Lot 3’s proposal. 

Subsequently the Owner of Lot 3 proposed a reduced scope of works which were within the boundary of the lot and mainly internal works to accommodate most of the 50% lot owners requirements.  Even when a motion was put in relation to the reduced works which the 50% lot owner had informally agreed to she voted against that. 

There were other issues in the Strata complex including an application by one owner for a small balcony from that unit which would open up that unit to the harbour views. 

There were also issues in relation to the requirements for significant structural work to the common property which related to significant structural elements of Lots 3 and 4.  The Owners Corporation is required to undertake those rectification works and each of the lot owners including the lot owner with the majority would be required to contribute in accordance with their unit entitlements and obligations.  The unit entitlement sets the percentage breakdown of contributions for the various levies. 

The majority lot owner wished to have all the disputes determined by the NCAT together and for a lawyer to be instructed on behalf of the Owners Corporation.  There are some difficulties as to these propositions.

Richard Watson reviewed the history and gave advice to the Owner of Lot 3 to try and keep her application separate from all the other issues that arose.

As the Motions for the Owner of Lot 3 to carry out works and for special by-law in various forms had been rejected the Owner of Lot 3 decided appropriately to seek to have an appropriate Order from the NSW Civil & Administrative Tribunal (NCAT) in particular relating to strata and community schemes. 

The NCAT has a process which allows for mediation and adjudication, and also Tribunal hearings and appeals from Adjudicator’s orders. 

The Owner of Lot 3 attended the requisite mediation.  The majority lot owner did not make any concessions.

The Owner of Lot 3 prepared an Adjudication Application in relation to strata and community schemes for appropriate Orders. 

Having regard to the history and documents, the critical aspect was to prepare submissions which were clear, concise, accurate, easy to read and understand and would result in the Order sought by the Applicant being the Owner of Lot 3. 

An Adjudication Application is one that is prepared in written form and the Adjudicator decides on the basis of the written form.  A mere assertion will not be adequate it will need to be supported by appropriate documentation and evidence.

Watson & Watson experienced Strata Lawyers have been approached by many owners who have been to mediation which failed, and to adjudication seeking Orders which appeared reasonable, however, the Orders were refused by the Adjudicator.  Primarily in many cases the Application was not properly supported by appropriate evidence and submissions which would enable the Tribunal Member to make the appropriate Order. 

Presentation is crucial as the Adjudicator will decide on the evidence before the Adjudicator in making a decision.  It is up to the Applicant to prove an entitlement to the orders sought.  This is where many many applicants fail. 

Often many of those applications have merit and would not fail if the application and evidence had been properly presented. 

If your matter is important to you then we suggest that you obtain advice as to what is required.  If on a review the fundamental presentation of the motion and other evidence which would be required to enable an Adjudicator to make a decision is not properly been put to the Owners Corporation, it is better at that stage to properly prepare and resubmit the Motion to the Owners Corporation rather than continue down a path which is doomed to fail, not because the application is unreasonable but because the evidence is not available to satisfy the Adjudicator that the Adjudicator should make the order.

In this particular case, the submissions were clear, succinct, supportive of the application and based on that the orders as sought were made.  The Adjudicator indicated that the submissions were “a very well prepared and detailed submission”.  This is a rare endorsement by an Adjudicator.  An appeal against a refusal by an Adjudicator to make an Order sought has difficulty.  It is best to have the application to the Adjudicator properly and succinctly prepared to give yourself the best opportunity to obtain an appropriate order as may be sought by you.

If you have difficulties with the Owners Corporation or you are on the Executive Committee and a lot owner seeks an order for approval for something that you believe is unreasonable please contact Richard Watson an experienced Strata Lawyer in Sydney to obtain an opinion as to your prospects and the best approach to be adopted.