This article is about understanding the law, and NCAT practice and procedures.
While the main objective of the NSW Civil and Administrative Tribunal (NCAT) is to provide a simple, quick, and effective process for resolving disputes, it is important for you to understand the law applicable to your claim, as well as the practice and procedures in NCAT if you intend to be self-represented.
Bradshaw v Cooke and The Owners – Strata Plan No 91905 [2021] NSWCATAP 156
In the recent decision of Bradshaw v Cooke and The Owners – Strata Plan No 91905 [2021] NSWCATAP 156, the question before the Appeal Panel was whether the Tribunal Member was incorrect in appointing Mr Cooke’s proposed strata manager rather than Ms Bradshaw’s preferred strata manager.
Ms Bradshaw alleged that the Tribunal’s decision was not fair and equitable because the Tribunal did not give “due consideration” to her preferred manager “on the basis of an administrative oversight/ misunderstanding”. Ms Bradshaw claimed that she was not clear on the difference between a voluntary appointment and compulsory appointment of a strata managing agent at the time of the hearing. Due to this, she claimed she was not aware that by agreeing to a compulsory appointment at the Tribunal, the documentation submitted for her proposed strata managing agent (which was on the basis of a standard non-compulsory appointment) would exclude them from consideration. Ms Bradshaw also argued that the decision was not fair and equitable because the appointed strata manager was more expensive than her preferred strata manager. As such, Ms Bradshaw wanted an opportunity to provide the relevant information so that the Tribunal could appoint her preferred strata manager.
Decision
The Appeal Panel stated that the Tribunal was not able to appoint Ms Bradshaw’s preferred strata manager because she had not provided sufficient evidence to the Tribunal to satisfy the conditions precedent in section 237(4) of the Strata Schemes Management Act 2015. As such, the Tribunal appointed the only strata manager that it could in the circumstances.
Importantly, the Appeal Panel stated that it was for Ms Bradshaw to understand the relevant law applicable to the proceedings as well as the practice of the Tribunal. The Tribunal had given notice to the parties, at least 14 days before the hearing, that it would be considering the compulsory appointment of a strata manager and that it required certain documents to make the appointment. It was up to Ms Bradshaw to inform herself of the practice and procedure and the applicable law and make any applications she deemed necessary.
Know your stuff, or engage someone to know it for you
The takeaway from this case is that while the main objective of NCAT is to provide a simple, quick, and effective process for resolving disputes, parties who intend to represent themselves should make sure that they understand the law applicable to their claim, and the practice and procedures in NCAT. Our firm is experienced in representing clients in NCAT claims and can also provide ad hoc advice should you wish to predominantly run the matter on your own.
Jasmin H.Singh & Allison Benson
Kerin Benson Lawyers
E: [email protected]
P: 02 4032 7990
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
This post appears in Strata News #519.
Have a question about understanding the law, and NCAT practice and procedures or something to add to the article? Leave a comment below.
Read next:
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- NSW: Q&A Issuing and Enforcing a Notices to Comply with a By Law
- NSW: Q&A Is Strata Schemes Management Act 2015 for Residential Only?
- NSW: 2021 New Strata Legislation Will Soon Become Law
This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyers website.
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