If talking it out and mediation don’t work, a strata dispute in New South Wales usually ends up at the Civil and Administrative Tribunal (NCAT). Good cases still fail at the tribunal, often for avoidable reasons. Those were the themes at the inaugural Strata Law Symposium on 30 September, hosted by Kerin Strata Lawyers in partnership with Lookupstrata.
NCAT is flexible, but it isn’t a free for all
The Hon. Robertson Wright SC, a former Supreme Court judge and NCAT’s inaugural President, opened with the good news. Unlike a court, NCAT isn’t bound by the rules of evidence. It can decide its own procedure where the law doesn’t prescribe one, and it must act according to the substantial merits of a case without regard to technicalities. It can also extend time limits, even where the strata legislation sets a deadline.
Wright was clear that this flexibility has limits. NCAT must still follow the principles of natural justice, which means each side gets a fair chance to hear and respond to the other side’s evidence. The Court of Appeal has also confirmed that an informal approach to procedure doesn’t change the substantive law the tribunal must apply. A strata case is still decided under the Strata Schemes Management Act 2015 (NSW) and general principles of law.
Where to find the rules
Wright said the procedural rules, although dull, matter because they can be hard to find. Strata matters are governed by three sources that work together:
- Part 4 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) sets out practice and procedure. It is expressly subject to the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules) and any procedural regulations.
- The division schedule tells you which division hears your matter. Schedule 4 of the NCAT Act allocates strata proceedings to the Consumer and Commercial Division. If the schedule conflicts with the NCAT Act, the schedule prevails.
- The NCAT Rules can override Part 4, so you need to check them too.
Wright’s practical advice was to start at Part 4, then check Schedule 4, then read the NCAT Rules. The NCAT website also has NCAT’s costs guidelines in the Consumer and Commercial Division, which he recommended reading.
Costs and representation
Costs are a good example of the flexibility and its limits. Under the NCAT Act, each party generally pays its own costs, and the losing party doesn’t have to pay the winner’s costs. The tribunal can still award costs in special circumstances. However, the NCAT Rules add a further exception: in Consumer and Commercial Division matters where the amount in dispute is $30,000 or more, the general rule on costs doesn’t apply. Where the amount is under $30,000, or no amount is claimed, the rule that each side pays its own costs usually applies.
Representation also needs care. A party generally can’t be represented by someone else without the tribunal’s leave, and leave can be sought orally or in writing at any stage. The tribunal’s guideline says it will usually allow an owners corporation to be represented by a committee member or its strata managing agent. For other parties, it usually allows representation by a lawyer only in certain circumstances.
Four things to avoid if you want your case to succeed at NCAT
Wright said these are the points where strata litigants most often go wrong.
- Missing prerequisites. Where the legislation requires it, you must mediate, or genuinely attempt to mediate, before applying to the tribunal. Section 227 of the Strata Schemes Management Act sets this out. The mediation requirement can be satisfied through Fair Trading or a private mediator. Time limits also matter. Claims under section 106 of the Act now have a six-year period, previously two years. In certain circumstances, NCAT can extend a time limit.
- Not understanding the process. Unrepresented litigants often struggle at interlocutory and final hearings because they don’t know what to expect. Wright suggested that the best way to learn is to sit in on the strata list and watch how matters are run.
- No clear legal basis. A party must be able to state the legal basis of its claim. In complex matters, NCAT may require points of claim and points of defence, similar to pleadings in court. The tribunal won’t usually work out your legal case for you.
- Not enough evidence. A sound claim still fails without relevant, reliable and comprehensive evidence, filed in line with the tribunal’s orders. Evidence rules don’t formally apply in NCAT, but Wright said they are a useful guide. Expert evidence is a good example. NCAT’s Procedural Direction 3 on expert evidence sets out what experts should consider so that their evidence is convincing.
Wright also addressed artificial intelligence. NCAT’s Procedural Direction 7 generally prohibits using generative AI to produce evidence, including witness observations. The Direction permits AI for written submissions and summaries, but anyone who uses AI must state that they checked the information.
Wright’s point was that the tribunal won’t fill these gaps. It must stay fair to both sides, and its members work through long lists with limited time. Members rely on parties arriving prepared.
When the other side is being difficult
Wright’s first advice was not to match a difficult opponent’s behaviour. If you can help the member without compromising your case, it is usually wise to do so. If you can’t, explain why calmly and respectfully.
The tribunal also has specific powers. In Consumer and Commercial Division matters, Schedule 4 allows the tribunal to dismiss or strike out proceedings, or find against a party, where it has been unreasonably disadvantaged by the other party’s conduct, including failing to comply with orders. Under section 55 of the NCAT Act, the tribunal can dismiss proceedings it considers frivolous, vexatious, misconceived or lacking in substance. Wright said these words have technical meanings, and that a tribunal is more likely to act if you have cooperated and tried to resolve the problem first. For a persistent litigant, the Vexatious Proceedings Act 2008 (NSW) allows the Supreme Court to restrict proceedings. Wright described it as a remedy for extreme cases of repeated vexatious litigation, not a first step.
Why rules only work if someone enforces them
Bronwyn Weir, of Weir Legal and Consulting, was co-author with Professor Peter Shergold of the Building Confidence Report, which was commissioned by Australia’s building ministers. She said rules and dispute services matter, but regulators must enforce them.
Weir pointed to research from New South Wales and Victoria showing that more than half of new apartment construction still has serious defects. She said developer influence can continue long after completion, through retained lots, related entities, leasing arrangements and proxies. She also said conflicts of interest are widespread in the sector, and that disclosure alone isn’t enough.
She described the NSW Strata Commissioner’s enforcement powers as stronger than those in other states, and said New South Wales is well ahead of the rest of the country. South Australia’s reforms were limited, Victoria has a taskforce report due for consideration after its election, Western Australia is at an early stage of review, and Tasmania is consulting on reforms. She added that states are often working in isolation rather than drawing on New South Wales’ experience.
What Fair Trading is doing about disputes
Angus Abadee, the NSW Strata and Property Services Commissioner, said Fair Trading ran more than 1,300 mediations last year, with a success rate above 75%. Mediation applications rose 35% last year, and waits can reach four months. He said that is still quicker than a full NCAT hearing, and that mediation is the best way for parties to resolve a dispute and deal with the next one.
Abadee said Fair Trading is focused on the strata managing agents it regulates. It has disqualified people from the sector and commenced prosecutions over fiduciary duties, because managing agents must act in the best interests of the owners corporation. Fair Trading also conducts unannounced audits.
On repairs and maintenance, Abadee said Parliament has decided the regulator should handle these disputes, and Fair Trading can issue orders requiring work to be done. Abadee said Fair Trading can’t deal with levy amounts, building management statements or the chair’s conduct, so these disputes still go to litigation. He said by-law breaches are a grey area, with limited regulator powers, so NCAT handles them for now. His goal is to move as many repairs and maintenance disputes as possible out of NCAT.
Christopher Kerin, principal partner of Kerin Strata Lawyers, said that section 106 claims, which relate to repairs and maintenance, are the most common disputes he sees, and that he has seen more of them over the last two or three years than before.
Levies, sinking funds and minimum amounts
Abadee said that new laws require an independent quantity surveyor to review a developer’s initial maintenance schedule and the levies set for a new scheme, so developers can no longer set attractive low levies on their own. Fair Trading has also released a standard capital works fund planner for owners corporations.
He said he has taken real estate agents to task for promoting low levies as a selling point, because they are often misleading. Low levies usually mean a scheme isn’t saving for future work. He does not expect minimum levy amounts to be prescribed at this stage, because owners corporations can fund works through levies, loans or a combination.
Weir compared a building’s sinking fund to superannuation: money set aside now to meet higher costs later. She also said governments will need to look more closely at how these funds are held and managed.
Other topics from the panel
- Mandatory committee training: from 1 October 2026, anyone appointed to a strata committee must complete the free online course within three months of appointment. Members who don’t complete it will no longer be committee members. Existing members must complete it at their next appointment.
- Embedded networks and management agreements: Abadee said legislation before Parliament at the time would limit building management agreements to three years and stop developers avoiding the cost of embedded network assets when contracts are rescinded.
- EV charging and solar: Abadee said the government has made it easier for owners corporations to approve sustainability upgrades. He noted that uncertainty causing disputes, and so he encouraged committees to seek advice rather than delay a decision.
- Levy arrears: Kerin said payment plans are usually how arrears are handled. Abadee said the 2025 reforms make payment plans available where a scheme can afford them, and cap recovery costs and interest.
Wright closed the symposium by reminding the room that a good case is not automatically a winning case. Success depends on understanding the claim’s legal basis and presenting cogent evidence and submissions.
This article is based on the Strata Law Symposium: Disputes in Strata, Themes and Pitfalls, hosted by Kerin Strata Lawyers in partnership with Lookupstrata, featuring The Hon. Robertson Wright SC, Bronwyn Weir, Angus Abadee and Christopher Kerin, moderated by Thom Richards of Cohabit.
This post appears in Strata News #813.
Leave a Reply