October 6, 2020 at 6:22 pm #391548AitikMember
Where an OC is required to use an insurance company-appointed lawyer due to their legal defence cover, what are the implications?
Are the OC still up for out of pocket costs?
Do the same rules apply re seeking leave to be represented?
Are outcomes generally more favourable for Applicants?
Also, the word “submission” – can this be both written and oral? Is there any guidance around this?October 8, 2020 at 7:44 am #391759Amanda FarmerExpert
The lawyer’s fees will be covered by the insurer, to the limit of the policy. In my experience, this is usually $50,000. The Owners Corporation is liable to pay anything over this amount.
Yes, the insurer-appointed lawyer still needs to seek leave to appear.
No, the outcomes are no more or less favourable with these lawyers appointed.
Yes, submissions can be oral or written. I usually do both: file written submissions before the hearing in accordance with the timetable my client has been directed to comply with, and be prepared to make oral submissions (usually along the same lines as the written submissions) at the hearing.
Amanda.February 22, 2021 at 6:23 pm #398853AitikMember
Are you able to provide information in relation to a situation where an insurance-appointed lawyer is being used by a Respondent (OC) and the Applicant (Owner) becomes 50% UE during the proceedings, i.e. can the Applicant influence the direction of proceedings/cease use of legal services in general? How would this work please?
AitiKFebruary 22, 2021 at 7:14 pm #398856AitikMember
Can you also advise in relation to seeking to be exempt from costs in this case please?
AitikFebruary 23, 2021 at 9:27 pm #398924Amanda FarmerExpert
Who is instructing the lawyers? Is/was there a resolution of the committee/OC authorising this person to instruct the lawyers?
I ran exactly the argument you’re alluding to before the Tribunal recently.
The Senior Member didn’t like it (though my client won the case on other points…)
I do, however, think the question of authority is an important one. If you are 50% owner and the lawyers say they are taking their instructions from “the Owners Corporation” who is this? The strata manager? The other 2 owners? Separately or together?
If any of those other people, what authority have they been given by the Owners Corporation to act as its representative to the lawyers for these proceedings?
Things to think about.
Amanda.February 23, 2021 at 9:34 pm #398927Amanda FarmerExpert
Hi Aitik, in relation to your costs question, can you clarify?
Do you mean, if the OC is ordered to pay your costs, how do you avoid having to contribute to your own cost order?
If so, I will put into a document for you a recent order I sought in those terms and the submissions I made in support (no determination yet…). I will link to it here.
Let me know.
Amanda.February 24, 2021 at 2:38 pm #398970AitikMember
Very helpful and if you can send link re cost order application that would be useful.
With costs and implications for seeking exemption re being 50% UE, I mostly mean in relation to s90(2) of SSMA.
I understand the Act says, the court may order that any money (including costs) payable by an owners corporation under an order made in the proceedings must be paid from contributions levied only in relation to the lots and in the proportions that are specified in the order.
In my case the costs would namely relate to those incurred by OC to perform repairs to common property. It is estimated that the costs will total approximately $10K. As 50% UE I would be liable for $5K and this seems unfair given I am aggrieved party. I would like to know if I can seek an exemption and how to do this, and can this only be done if/following Orders being made, and how would this s90 clause apply in the case the matter was settled via a Deed of Release, rather than through Orders of the Tribunal?
Thanks in advance.
AitiKFebruary 27, 2021 at 7:12 pm #399127Amanda FarmerExpert
No, the Tribunal will not order that you be exempt from the repair costs.
The ‘costs’ that s 90 refers to are costs of litigation (ie: lawyer’s and expert’s costs), not costs of repair and maintenance.
I will separately upload my template submissions on this point, but as a short cut for you now, here you’ll find the costs decision handed down in my client’s favour just a few days ago. May be helpful.
Bear in mind this cost order relates only to legal costs, per my point above.
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