Q&As

'NCAT - Legal Representation in Home Building and Strata Cases'

Monday October 20, 2014

The below article from 20 October 2014 has been provided by David Bannerman and Anne Fernando, Bannermans Lawyers

The rules regarding legal representatives appearing for strata schemes and owners has changed for application lodged from 1 January 2014 when the NSW Civil and Administrative Tribunal (the Tribunal) took over the functions of the Consumer Trader and Tenancy Tribunal. These changes are outlined below.

Home Building – Where Leave is Usually Granted

The Tribunal will usually grant leave in the following circumstances:

  • if the proceedings are to be heard in the Home Building List and involve a claim or dispute for an amount exceeding $30,000.
  • where the matter is appealed, a 2-3 member panel in the Tribunal will hear the appeal and the parties are permitted to be legally represented if they had such representation in the original proceedings.

Strata – Where Leave is Usually Granted

  • At mediation, there is no need to seek leave to be legally represented. The parties try to reach an agreement sitting around a table, effectively ‘having a cup of tea’.
  • In strata and community scheme matters determined by an adjudicator, there is no need to seek leave to be legally represented. Adjudications are essentially ‘paper fights’ in that submissions are made in writing by both sides with no appearances before the Tribunal.
  • Where an application is made for a penalty under the Strata Schemes Management Act 1996 or the Community Land Management Act 1989, leave will usually be granted.
  • Where the Tribunal is of the opinion that complex issues of fact or law are likely to arise or where the party would be placed at a disadvantage if not represented at the hearing.

Where Leave is Not Granted by the Tribunal

If the Tribunal Member refuses to grant leave (for instance if the matters in dispute are not complex), lawyers are still able to assist by:

  • advising how the Tribunal proceedings will run and what is expected of an owners corporation’s representative such as a strata manager;
  • advising what orders should be sought at the Tribunal;
  • drafting submissions on behalf of the owners corporation; and
  • attending Tribunal proceedings with the owners corporation’s representative and sitting behind them to advise as to next steps to be taken and answer any questions they may have.

Legal Costs

Despite whether leave is granted for legal representation, the Tribunal may make an order for legal costs in favour of the owners corporation.

Where the owners corporation is defending proceedings, the owners corporation may be able to claim legal defence costs from its insurer. For further information regarding legal defence costs see the below article.

Legal Defence Costs - Residential Strata Insurance - Comparative Snapshot

Click here for more information.

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