Parking, Trees, Money & Meeting Issues result in a Mandatory Strata Manager

Foo v Frew [2023] NSWCATAP 303

Quick Read

This 2023 NCAT Appeal Panel decision is about a dispute in a 2 lot Balgowlah strata title building over whether a mandatory strata manager should be appointed. There were ongoing differences between the strata owners in this self-managed strata building since 2019 over parking, tree removal, garden and building maintenance, strata funds, and meetings [there hadn’t been any]. So, the Tribunal appointed a mandatory strata manager. One strata owner appealed. The NCAT Appeal Panel considered the Tribunal’s reasoning, what legal issues are relevant to NCAT appeals, and the circumstances where NCAT had previously made mandatory strata manager orders; providing a kind of mandatory strata manager order checklist. It ultimately decided to confirm that a strata manger was required. Plus, the decision is a reminder of how impasses in 2 lot strata buildings often lead to mandatory strata managers.

Implications

NCAT can appoint a mandatory strata manager to run a strata building, even without an application.
NCAT Appeals are limited to legal issues, and don’t usually revisit matters decided by Tribunals.
NCAT’s power to appoint mandatory strata managers is discretionary and should be based on sound reasons.
Mandatory strata manager orders need dereliction of duty or dysfunction in the strata building operations.
Mandatory strata manager orders are not made lightly.
The aim of mandatory strata manager orders is to maintain a democratic strata system rather than replace it.

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Full Report & Case Details

This decision by the NCAT Appeal Panel is about a dispute in a 2 lot Balgowlah strata title building over whether a mandatory strata manager should be appointed.

There was no strata manager and the strata owners had been arguing about issues since 2019 including parking allocation, cutting down some trees, garden and building maintenance, and how the secretary managed strata funds. Plus, no strata owner or committee meetings had been held. Unsurprisingly, the strata owners had completely different views about the issues, plus one of the strata owners had left the country for 2 years during Covid.

During another case between them over parking, the Tribunal appointed a mandatory strata manager for 2 years because there were no meetings since 2019, there was no separate bank account, there was no capital works fund, there was an impasse between the strata owners, parking issues added to that tension, and concluding that there was a pattern of dysfunction.

That decision was appealed.

Section 237 of the Strata Schemes Management Act 2015 allows the Tribunal to appoint a strata manager to run strata buildings in certain situations, including when it is not functioning at all or satisfactorily or it has not complied with strata laws, and the Tribunal can give that strata manager complete control of the strata building’s affairs; removing strata owners’ rights to make decisions.

As an appeal, the primary issue in the case was whether the Tribunal correctly decided to appoint the mandatory strata manager, so it was legally very limited.

But, in making its decision, the Tribunal considered the issues between the strata owners and reviewed the kinds of situations that warranted appointing mandatory strata managers based on earlier Tribunal and NCAT Appeal Panel decisions and concluded as follows.

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Keywords

#NSW #NCAT #stratamanager #appeals #dysfunction #parking #meetings #2023 #SSMA2015 #s237