Property 101: Dispute resolution and NCAT

GUEST OBSERVER

The Strata Schemes Management Act 2015 (NSW), which is now expected to commence on 1 October 2016, makes some significant changes to the existing statutory dispute resolution procedures that strata manager’s, owners corporations and lot owners should be aware of. These are detailed below but first, we look at the existing dispute resolution process.

The Current Dispute Resolution Process

The current Act, the Strata Schemes Management Act 1996 (NSW), requires most strata disputes to be mediated prior to an application being accepted by the NSW Civil & Administrative Tribunal (NCAT) registry. There are a few exceptions including applications for interim orders and applications for the compulsory appointment of a strata manager. Mediations are usually conducted by mediators from the Office of Fair Trading. Mediations can take between one to three weeks to arrange.

Adjudicator’s Orders 

If an agreement was not reached at mediation, or, if the mediation agreement has been breached, in most instances the next step is to file an application for Strata Scheme’s Adjudicator’s orders. These applications are “heard on the papers”. This means that the applicant, respondent and any interested parties must file written submissions and evidence in accordance with the timetable provided by the NCAT registry. Evidence is usually by way of a statutory declaration. To view submissions made by interested parties you must contact the NCAT registry and make arrangements to view the file. NCAT copying fees will apply if you wish to make copies. After the closing date for submissions, an Adjudicator is assigned and they review the filed documents and make a written decision which is then posted out to the parties.

If you wish to appeal the decision of an Adjudicator then you must file an application for NCAT orders. Strict time limits apply and legal advice should be sought on the date the order takes effect and the time limit for filing an appeal. Leave to appeal outside of time can be applied for however it can be difficult to obtain. Costs orders are not available in this type of application.

Interim Orders 

These are Adjudicator’s orders that are made on an urgent and usually ex parte (meaning without the other party being present) basis. They are generally reserved for matters where an order is required to preserve the status quo prior to an Adjudicator making final orders. Interim order applications must be filed together with applications for Adjudicator’s orders.

Tribunal Orders

Applications for Tribunal orders are filed with the NCAT Registry. The Registry serves the application and a notice of directions hearing. Unlike Adjudicator’s orders, the parties must attend NCAT for hearings. Applications can be made for telephone hearings in some circumstances.

There is no right of appearance in NCAT and leave to appear must be sought at either the first directions hearing or in writing beforehand. At the first direction hearing, orders setting out a timetable for the progression of the matter are made. These will include dates when submissions and evidence are due. The Registry will also re-list the matter, for a further directions hearing or for final hearing.

Although the rules of evidence do not apply (except in civil penalty matters such as for a breach of a notice to comply) the proceedings are similar to court proceedings in that both parties are to appear and argue their case before a NCAT member. The Member may restrict each parties’ time to provide arguments and adduce its evidence. At the end of arguments the Member may reserve their decision or give an oral decision when the arguments have closed. You have the right to request written reasons for the decision.

Appeals are strictly limited both in time and the types of appeals that can be made. We recommend you seek legal advice before instituting any appeal.

 The new NCAT Process

The Strata Schemes Management Act 2015 provides for a new dispute resolution process. Owners Corporations can establish their own independent dispute resolution process and the NCAT is given wider powers. Mediation is still required however prior to applying for orders for most types of matters.

Arguably the largest change is that there will be no more applications for Adjudicator’s orders and all applications must be made for Tribunal orders. This means that all applications will now be heard in person (or if leave is granted over the telephone) and parties will need to attend the NCAT to present their arguments and evidence. Leave to appear is still required and the same provisions of the Civil & Administrative Tribunal Act 2013 (NSW) apply to applications for leave. The process for Tribunal orders detailed above will remain the same although it is expected that there will be an increase in the number of matters listed at each directions hearing (meaning more time should be set aside to attend directions hearings) due to all matters now being heard by the Tribunal.

The ability to appeal from a Tribunal decision is unchanged. 

Allison Benson is legal practitioner director, Kerin Benson Lawyers and can be contacted here.