How to Bring an Urgent Strata Application

In the context of Strata Law in New South Wales, if a matter is urgent and time-sensitive an applicant can seek urgent orders in the NSW Civil and Administrative Tribunal (NCAT), but how do you do it? In this podcast, Anne Fernando, Partner at Sachs Gerace Lawyers discusses how to bring an urgent Strata Application.

Transcript:

Intro: Need help with a strata law issue or a building and construction matter? Sachs Gerace Lawyers is a leading Sydney law firm that can help. With over 20 years experience, Sachs Gerace Lawyers focus on commercial litigation, building and construction, strata law, and local government regulation issues. Now, here is your podcast.

Dan: In the context of strata law in New South Wales, if a matter is urgent and time sensitive, an applicant can seek urgent orders in the New South Wales Civil and Administrative Tribunal, or NCAT, as it’s colloquially known. But how do you do it? Well, in today’s podcast, I’m with Anne Fernando, Partner at Sachs Gerace Lawyers.

So Anne, is it possible to bring legal proceedings urgently if you have a strata dispute that requires urgent resolution?

Anne: Yeah. So if an Owners Corporation or a lot owner has a dispute that requires urgent resolution, Then it’s possible to bring what’s called an interim application to the tribunal. You don’t have to go to mediation first before doing this. An example of where we’ve done this for an Owners Corporation is where a lot owner was carrying out unauthorised work to common property. That’s work without the approval of the Owners Corporation. This lot owner refused to stop carrying out the work despite the Owners Corporation asking him to do so on several occasions. Another example is where we acted for a lot owner when the Owners Corporation deactivated her security pass to access the building and she wanted to get it reinstated. Now, once an interim application is lodged, the tribunal can make a medium interim, which is like temporary orders on the papers without a hearing. If it is satisfied, based on the evidence submitted with the application, that should do so. The tribunal will then make a timetable for the parties to put on evidence and submissions in relation to the issues in dispute, and then list the matter for hearing within usually a few weeks of the date of the application.

Now, if the tribunal has already made the interim orders on the papers, then it’ll consider whether to extend those orders at the final hearing. If the tribunal hasn’t made an order on the papers, so this is in cases where the tribunal hasn’t thought that there was sufficient evidence to warrant making an order like that on the papers, then it’ll only consider making an interim order on the day of the hearing.

Dan: So, Anne, what evidence do you need to get these orders made on an urgent basis?

Anne: Well, Dan, you need to show that there are urgent considerations which warrant the making of interim orders. For example, where we acted for a lot owner who no longer had access to her building, we put on evidence to show that her swipe card had been deactivated, which meant she couldn’t use the lift. We also put on evidence which showed she was on level 20 of the building and had mobility issues. It wasn’t practical for her to walk up the stairs every day. Where we acted for the Owners Corporation, we put on evidence to show that the lot owner was carrying out work such as replacing the waterproof membrane without authorisation of the Owners Corporation by way of resolution at a general meeting. Now, that’s what’s required under the Strata Scheme Management Act. Now, in both those examples, the tribunal immediately made orders on the papers which restrained the behaviour that we complained of.

Dan: What’s the procedure for the hearing of the actual interim application?

Anne: On the day of the hearing, the tribunal will let each party make submissions based on their evidence, and in some cases, will allow limited cross-examination. Generally, this matters only take an hour or two to be heard, and the tribunal makes a decision on the spot or otherwise shortly afterwards. It’s also important to note you can’t make an interim application without seeking substantive orders as well. So these are more permanent orders. So for instance, in the example of the unauthorised work to common property, the substantive order sort would be for the common property to be reinstated to what it was before the unauthorised work was carried out. In my other example of a security pass being deactivated, the Owners Corporation gave itself the power to do so pursuant to a bylaw. The substantive order sought would be to seek an order that the bylaw be invalidated, which would prevent the Owners Corporation from deactivating security passes again. At the hearing of the interim application, there will also be a directions hearing for the substantive application where a timetable for evidence is made for that application, and then that application will be listed for hearing separately. If the interim order is made or extended as the case may be at that hearing, it will only be made for three months or until the date of the hearing of that substantive application.

Dan: What happens in those matters if the reason for bringing the urgent proceedings actually goes away?

Anne: Yeah, good question, Dan. If that happens, then it’s possible to withdraw the proceedings at any time. For instance, in the example of the lot owner carrying out unauthorised works, the owner’s corporation may wish to withdraw the proceedings against the lot owner if the lot owner stops carrying out the unauthorised works and submits a bylaw for approval by the Owners Corporation, which is then approved by the Owners Corporation at a general meeting. So that would mean that the lot owner could then carry out the work legitimately. In that case, the Owners Corporation should withdraw the proceedings as there wouldn’t be any point in continuing them.

Dan: Are there any costs or consequences in doing this, Anne?

Anne: Yeah. So in withdrawing the proceedings, I guess there could be a risk that the other side may try and seek its costs. But the general rule in NCAT is that each party has to pay its own costs. So the other side could only argue that they should be granted their costs if they can prove that special circumstances exist. Examples of special circumstances are where a party has delayed the proceedings in one way or the other, the strength of the claims made by each of the parties, the nature and complexity of the proceedings, whether they were frivolous or vexatious or otherwise, preconceived or lacking in substance. Another exception is that if you’re claiming an amount over $30,000, then costs are awarded to the successful party. But look, it’s unlikely that there would be a cost order if you have legitimate grounds for bringing the application. For example, in the two examples that I talked about earlier, we had evidence to support the application, and there was a legitimate basis on which they were brought, so there weren’t cost orders made.

Dan: What happens if you are a lot owner who has brought proceedings against an Owners Corporation and you are successful? Do you still have to pay a contribution towards the costs of the Owners Corporation as well as your own costs?

Anne: Yeah. So if you’re a lot owner and you can make proceedings against an Owners Corporation, then when the Owners Corporation raises levies to pay for its legal costs, you have to also contribute to those costs as per your unit entitlement. However, if you’re successful, then the Owners Corporation has to refund to you any amount that you’ve contributed towards the Owners Corporation cost. There’s no need to take any orders from the tribunal about this because the Strata Schemes Management Act actually requires the Owners Corporation to refund the successful lot owner.

Dan: How can Sachs Gerace Lawyers help with these urgent applications, Anne?

Anne: Well, as I’ve discussed, Dan, in order for urgent orders, interim orders to be granted, it’s important for the lot owner or Owners Corporation to draft an application properly to address urgent considerations. You also need to put on relevant evidence in support of the application. Otherwise, there’s a risk that the urgent orders won’t be granted. We have a lot of experience drafting these urgent applications. We can draft the application to give either the lot owner or the Owners Corporation the best chance of success. If it’s an application where we think there are low chances of success for getting interim orders, then we can also provide a better way to help resolve the dispute as well.

Dan: Anne thanks for joining me.

Anne: Thanks, Dan.

Outro: Thanks for listening. If you have any questions or need more information, simply call Sachs Gerace on 02-9331-5177.