NSW: Can the strata committee ignore owner emails, and what options does an owner have?

Question: Can the committee ignore my emails? What options do owners have, and is the committee required to respond?

As an owner in a strata scheme, l emailed the owners corporation about six months ago. They denied receiving the email. I resent the email via our strata manager about a month ago. The strata manager confirmed they received the email and had forwarded it to the committee. After no response, I sent a follow-up email, but they still haven’t replied. Can the committee ignore my emails? What options do owners have, and is the committee required to respond?

Answer: An owners corporation is deemed to have failed in exercising its functions if it does not act within 2 months of an application.

Under Section 232 of the Strata Schemes Management Act, 2015 (NSW)(Act), an owners corporation is deemed to have failed in exercising its functions if it declines to do so or does not act within 2 months of an application which entitles you to commence action through NCAT (see below):

232 Orders to settle disputes or rectify complaints

1. Orders relating to complaints and disputes The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—
   
   1. the operation, administration or management of a strata scheme under this Act,
   2. an agreement authorised or required to be entered into under this Act,
   3. an agreement appointing a strata managing agent or a building manager,
   4. an agreement between the owners corporation and an owner, mortgagee or covenant chargee of a lot in a strata scheme that relates to the scheme or a matter arising under the scheme,
   5. an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,
   6. an exercise of, or failure to exercise, a function conferred or imposed on an owners corporation under any other Act.
2. Failure to exercise a function For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if—
   
   1. it decides not to exercise the function, or
   2. application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
3. Other proceedings and remedies A person is not entitled—
   
   1. to commence other proceedings in connection with the settlement of a dispute or complaint the subject of a current application by the person for an order under this section, or
   2. to make an application for an order under this section if the person has commenced, and not discontinued, proceedings in connection with the settlement of a dispute or complaint the subject of the application.
4. Disputes involving management of part strata parcels The Tribunal must not make an order relating to a dispute involving the management of a strata scheme for a part strata parcel or the management of the building concerned or its site if—
   
   1. any applicable strata management statement prohibits the determination of disputes by the Tribunal under this Act, or
   2. any of the parties to the dispute fail to consent to its determination by the Tribunal.
5. The Tribunal must not make an order relating to a dispute involving a matter to which a strata management statement applies that is inconsistent with the strata management statement.
6. Disputes relating to consent to development applications The Tribunal must consider the interests of all the owners of lots in a strata scheme in the use and enjoyment of their lots and the common property in determining whether to make an order relating to a dispute concerning the failure of an owners corporation for a strata scheme to consent to the making of a development application under the Environmental Planning and Assessment Act 1979 relating to common property of the scheme.
7. Excluded complaints and disputes This section does not apply to a complaint or dispute relating to an agreement that is not an agreement entered into under this Act, or the exercise of, or failure to exercise, a function conferred or imposed by or under any other Act, if another Act confers jurisdiction on another court or tribunal with respect to the subject-matter of the complaint or dispute and the Tribunal has no jurisdiction under a law (other than this Act) with respect to that subject-matter.

Further, under Section 106(5) of the Act, an owner of a lot in a strata scheme may recover from the owners corporation as damages for breach of the statutory duty to repair and maintain the common property, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation (but action must be commenced within 2 years of the lot owner first becoming aware).

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440