Paper 15 - Making an application to ACAT

In ordinary suburban settings, difficult and protracted disputes can arise between neighbours notwithstanding that they live on separate blocks with distance, fences and maybe a road between them. Living in the closer quarters of a unit plan, and being subject to the rules of its owners corporation, makes it more likely that disputes will arise.

Executive committees and managers can help resolve disputes that arise when individual members have differences that they cannot resolve, but always keep in mind that all owners and residents are bound to not interfere with other owners and residents rights to peacefully enjoy the use of common property and to live free of unreasonable invasion of their privacy. But remember that the rules apply to you as well as to all the other residents.

The ORS (the Office of Regulatory Services) has produced a very useful publication, the “Unit Title Dispute Resolution Guide”, which is available free and downloadable athttp://www.ors.act.gov.au/publication/view/1775/title/unit-titles-dispute-resolution-guide . This provides a comprehensive analysis of the kinds of situations that can arise, and suggests ways in which they might best be dealt with.

Remember that the primary functions of the owners corporation are to manage the common property and enforce its rules. The executive committee of an owners corporation exercises the functions of the corporation. If you cannot resolve the problem yourself you are entitled to ask your executive committee and/or strata manager to intervene. The members of the executive committee must not shrug and walk away or tell you to fix the matter yourself. Managers often say nothing can be done about the problem when they either don’t know what can be done or decide they don’t have the time to pursue the problem.

Executive committees need to do their own research, starting with ORS’s book and if necessary use its 'Useful Contacts' list.

If your executive committee and/or manager cannot or will not seek to resolve the problem, you are entitled to take the problem to the ACT Civil and Administrative Tribunal (ACAT) to adjudicate.

Get advice. Check under the “Decisions by ACAT” main heading to see if a similar matter has already been decided. Ring the ACAT Registry on (02) 62071740 to see if a similar matter has been decided but not reported, or email ACAT at tribunal@act.gov.au. Bring your problem to OCN at secretary@ocnact.org.au and we will assist where we can.

If you see no other solution, talk to ACAT. The Registry is more than happy to discuss your problem, advise if they can help and assist you to lodge an application. Discuss the issue again with your executive committee and manager. Once they realise that you won’t be fobbed off, they may be more willing to help you. Ignore ‘helpful advice’ that all your neighbours will hate you if you cause such trouble or that it will cost you lots. Do your own research. Talk to the relevant authorities.

You don’t have to use a lawyer; you can represent yourself or ask friends to help. Hearings are formal enough to be orderly but are not full of procedural niceties. If you are not legally trained you can ask for explanations.

ACAT has extensive powers and it does use them.

If the dispute is between the owners corporation and/or owners, the manager, service contractors or members of the executive, either party may apply to the ACT Civil and Administrative Tribunal (ACAT) to adjudicate. (S 125 of the Unit Titles (Management) Act)

If the dispute is about the keeping of pets, either the owners corporation or the owner or occupier of the unit in question may take the matter to ACAT. (S126)

If the dispute is about a former manager keeping control of owners corporation property, either the owners corporation or the former manager may take the dispute to ACAT. (S126)

ACAT can make orders as follows (S 129):

(a) an order requiring a party to do, or refrain from doing, a stated thing;

(b) an order requiring a party to exercise a function under this Act;

(c) an order requiring an owners corporation to do a stated thing that is ancillary to a function of the corporation under this Act;

(d) an order requiring a person to pay to the Territory or someone else an amount of not more than $1 000;

             (e) a declaration—

(i) that a general meeting or executive committee meeting is void for irregularity; or

(ii) that a resolution of a general meeting or executive committee meeting is void for irregularity; or

(iii) that a rule of the owners corporation is invalid for irregularity;

(f) an order repealing or amending a resolution of a general meeting or executive committee based on a merits review of the resolution by the ACAT;

(g) an order giving effect to an unsuccessful motion for a resolution of a general meeting (either as originally proposed or as amended by the ACAT) if the ACAT is satisfied after a merits review of the motion that opposition to the motion was unreasonable;

(h) an order requiring stated accounts of an owners corporation to be audited, whether by a stated person or a person of a stated kind;

(i) an order allowing an applicant to examine records of the owners corporation;

(j) an order requiring an owners corporation to make or repeal a rule and register a copy of the resolution making or repealing the rule;

(k) an order appointing an administrator to exercise all or stated functions of the owners corporation, the executive committee or an office-holder in the committee;

(l) if the dispute relates to a matter mentioned in section 126 (1) (a)—an order to remove the animal from the unit if—

(i) a condition requiring the owners corporation’s consent to keeping the animal is not complied with; or

(ii) the animal is causing a nuisance.

If you ‘win’ you may solve your problem, or you may have a set of new ones. If you ‘lose’ that doesn’t necessarily matter much because you have defended your rights. So long as you bounce your problem off neutral parties and get their advice and input, try to resolve it responsibly, seek advice and do your research, you have every right to protect your property and stand up for your rights.

Some owners corporations have problems that are so complex that having competent legal interpretation of how the law must be applied is the only way they can be resolved, and attempting to resolve this sort of problem informally is likely to just prolong the agony. Informal processes are very possibly what caused the problem in the first place, and referral to the ACAT is the best way to sort out whatever mess the situation has become.