1. To avoid the risk of missing time limitation periods for some causes of actions
Section 106(5) of the Strata Schemes Management Act 2015 (“the Act”) states that “An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.”
Lot owners seeking to claim damages for breach of the duty to maintain and repair common property under section 106 of the Act e.g. loss of rent claims, need to be aware of this limitation period under the Act.
If a lot owner is seeking an order under section 24 of the Act to nullify a resolution of the owners corporation on the ground that the person was denied a vote or notice was given, the application for the order may not be made unless:
- an application for mediation of the dispute was made not later than 28 days after the date of the meeting at which the resolution was passed, or
- if an application for mediation was not made, the application for the order was made not later than 28 days after the date of the meeting at which the resolution was passed
2. To avoid the risk of seeking the wrong orders under the Act
From time to time, self-represented applicants seek orders under the wrong sections of the Act. While a lot owner or owners corporation in this position may seek to invoke section 240 of the Act (Tribunal may make order of another kind), it is in the discretion of the Tribunal to make an order under a different provision of the Act “if it considers it appropriate to do so”. Therefore, it’s best to get things right from the start before lodging your application.
3. To avoid the risk of leaving out important documents and evidence
We have seen strata dispute cases where self-represented parties have failed to include important documents and evidence as part of their case and then later try to seek an extension from the other party and the Tribunal to file it late.
We have seen documents which self-represented lot owners have filed in support of applications for an order for compulsory management leave out copies of the letter of consent from the compulsory strata manager, license numbers and strata management agency agreement. Such incomplete applications run the risk of being dismissed unless such documents can be filed and served late with the leave of the Tribunal. Copies of the registered strata plan and current registered consolidated by-laws of the strata scheme are also important documents to include in most applications.
4. To avoid the risk of missing Tribunal deadlines
We are frequently contacted by owners corporations, strata committees and their strata managers seeking our assistance in Tribunal strata dispute proceedings when a Tribunal deadline to file and serve documents is due to expire in less than 2 weeks. While the owners corporation may seek permission from the other party to an extension to comply with the Tribunal’s order on the grounds that the owners corporation is having a meeting to approve the obtaining of legal advice and representation, the other party may either agree or oppose the request for an extension. Ultimately the Tribunal will make the determination. However, it is always good to get the ball rolling to seek legal advice and/or representation as soon as you receive a copy of the claim. Don’t leave it to the last minute.
5. The other party may have a lawyer acting for them
We always recommend you obtain legal advice before investing in a claim or defending a claim and even if the other party is not legally represented in the proceedings. It is not uncommon for a party to seek the Tribunal’s permission to be legally represented at the first directions hearing or even as late as at the commencement of the final Tribunal hearing.
6. If you lose your claim or defence, you may be exposed to pay the other party’s costs
Section 60 of the Civil and Administrative Tribunal Act 2013 sets out the powers of the Tribunal to award costs in Tribunal proceedings.
Section 60 of the above Act states:
(1) Each party to proceedings in the Tribunal is to pay the party’s own costs.
(2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs.
(3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following—
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance,
(f) whether a party has refused or failed to comply with the duty imposed by section 36(3),
(g) any other matter that the Tribunal considers relevant.
(4) If costs are to be awarded by the Tribunal, the Tribunal may—
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis.
(5) In this section—
(a) the costs of, or incidental to, proceedings in the Tribunal, and
(b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal.”
7. If you lose your claim or defence, there are time limits to lodge an appeal
There are time limits for lodging appeals of Tribunal decisions to the Appeal Panel of the Tribunal.
8. The complexity of the case involved
Some strata dispute cases can be legally complex and you may therefore wish to avail yourself of legal advice and/or representation sooner rather than later.
9. If you need to brief experts to prepare expert reports to prove your claim e.g. structural engineers
Some strata disputes may require expert evidence to prove or defend a claim.
10. If you have previously run Tribunal or Court proceedings and/or appeals which have been dismissed.
Advice should be sought on the risks of the doctrines of res judicata, issue estoppel and “Anshun” estoppel applying to bar any future claims and/or appeals.
Disclaimer: This is commentary published by Pobi Lawyers for general information purposes only and should not be relied upon as specific legal advice. You should obtain your own legal advice specific to your circumstances before you take any action or otherwise rely upon the contents of this article. The content of this article is subject to change.