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How to Apply for NCAT Interim Orders under Section 231 of the Strata Schemes Management Act 2015

15 Apr, 2019 | 0 comments

How to Apply for NCAT Interim Orders under Section 231 of the Strata Schemes Management Act 2015

Introduction

In strata disputes, an interim order is a type of urgent order which may be requested by an applicant lot owner or owners corporation in the NSW Civil and Administrative Tribunal (“NCAT”) under section 231 of the Strata Schemes Management Act 2015 (“Act”) to restrain certain actions by a party to the proceedings or to preserve the status quo pending the determination of the separate but related substantive application. If NCAT is satisfied on reasonable grounds that urgent considerations justify the making of an interim order, NCAT may make the interim order in the form of any order that could otherwise be made by the Tribunal and renew the interim order.

What are the steps?

The usual steps involved in NCAT interim applications leading up to a final hearing are as follows:

  1. Prepare the NCAT interim application form, legal submissions and evidence in support of seeking the interim order – ensure you have evidence of urgency.
  2. Prepare the NCAT substantive application form only – you will be given an opportunity at the substantive directions hearing to agree to a timetable/orders for the filing and service of your submissions and evidence in support of your substantive application e.g. 2-3 weeks from the date of the first directions hearing.
  3. File the NCAT interim application and substantive application at your nearest NCAT registry. You will need to pay the NCAT filing fee for the substantive application.
  4. You will receive a notice of hearing from NCAT that the NCAT interim application will be listed for hearing in approximately 3 weeks from the date of filing. NCAT will give the responding party an opportunity to file and serve their response to the interim application before the hearing.
  5. Prepare for an attend NCAT interim hearing. Orders are usually made on the same date of the NCAT hearing.
  6. Directions hearing on the substantive application will follow the NCAT interim hearing.

The interim order continues in force for 3 months from the making of the order or such earlier date specified in the interim order or if application is made for its renewal, until the renewal is granted or refused or if it is renewed, the end of the period of 6 months that commenced with the making of the order or any earlier date specified in the order.

It is important to note that the applicant requesting an interim order from NCAT must not make a statement that they know that is false or misleading in a material respect. There is a maximum penalty of 5 penalty units.

Examples of applications for Interim Orders

Some examples of applications for NCAT interim orders and their accompanying applications for NCAT substantive orders include:

  1. Interim order seeking urgent repairs to defective common property e.g. water leaking into unit causing flooding pending the determination of the substantive application seeking an order to appoint a compulsory strata managing agent;
  2. Interim order seeking to restrain registration of an alleged invalid by-law pending the determination of the substantive application seeking orders to invalidate the by-law;
  3. Interim order seeking that owners corporation register a by-law due to lapse in less than 1 month due to owners corporation’s dysfunctional management pending the determination of the substantive application seeking an order to appoint a compulsory strata manager;
  4. Interim order seeking to restrain a lot owner from carrying out unauthorised renovation works pending determination of the substantive application seeking orders for removal of the unauthorised works and that the lot owner reinstate the lot and affected common property to its former state; and
  5. Interim order seeking access to a lot to determine if urgent repairs to common property are required to be carried out pending determination of substantive application that lot owner has unreasonably refused consent to a common property rights by-law.

Pobi Lawyers are experienced strata lawyers and frequently make and defend interim applications in NCAT. If you need urgent advice or legal representation for an interim hearing, please contact our specialist strata lawyer Michael Pobi on 8324 7565 or email him at michael.pobi@pobilawyers.com

Please note that the information contained in this article is for information purposes only. It is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.