Variation orders

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Forums Disputes and litigation Variation orders

Viewing 9 posts - 1 through 9 (of 9 total)
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  • #394799
    Aitik
    Member

    Hi Amanda

    Can you advise how one can submit an application to vary an existing order (e.g. re dates for submissions), and also how one can apply for orders additional to the initial application (e.g. where the Tribunal has taken initiative to add an Owner as a Respondent and the Applicant now wishes to seek specific Orders against that second Respondent)?

    #394826
    Amanda Farmer
    Expert

    Hi Aitik,

    If you can’t comply with Tribunal directions (eg: a timetable for submissions) you should write to the Registry and explain why you can’t comply. The Registry will decide whether the matter should be listed before a Member to set a new timetable, or the issue might be resolved by an exchange of letters. Explain why you can’t comply and the amendment you propose to the timetable (eg: how much more time you need and how the timetable should be amended to take this into account).

    If you want to change the orders sought, you file an “Amended Application”. There is no particular form for this, just write to the Tribunal (copy in the other parties) stating that you wish to amend the orders sought and setting out the new orders. Call this your “Amended Application”. If you need to change it again later, it’s called a “Further Amended Application”.

    Amanda.

     

    #394842
    Aitik
    Member

    You’re a gem – thanks Amanda.

    #398368
    Aitik
    Member

    Dear Amanda

    Following your extremely useful advice on a member call recently my case is soon to go back for another Directions Hearing. I have made a submission seeking a smaller number of more concise Orders than my original application. This came on the back of the OC and Applicant (me) each having expert reports, which to a large extent agreed on the structural issues to be remedied, which is great. As you may recall, as well as the structural issues I also allege implications of the structural defects, being “structural” cracks in my lot. The OC expert did not concur with causation of cracking. This will be a point of contention and may be the cause of the matter proceeding to a full hearing.

    To complicate matters and potentially make them much more interesting is the fact that in the last few days I have become an owner of another lot in the small scheme of four lots. As each lot has equal unit entitlements being 25 per cent I will have 50 per cent voting rights for all matters. I understand this means the OC can’t make decisions/take action on matters requiring majority vote without my agreement and likewise I would require at least one owner’s support for matters I wish to action.

    In relation existing Tribunal proceedings, I would really appreciate your insight into how this might and should play out. Specifically, any costs incurred by the OC in the course of defending the proceedings (e.g. legal defence and expert services) and whether as the Applicant and owner of two lots, I would still be able to make an application (if Orders are made) to be exempt from contributing/would this mean other two lots alone would need to raise a special levy?

    Also in terms of decisions about how to proceed with the defence of my claim, being now that I am 50 per cent ownership, are the other two owners (and legal defence team acting for them) obliged to take my view into account, e.g. drop defence of claim and simply perform repairs (which are not even expected to be of a significant cost, but do affect common property boundary walls)?

    Also, in terms of day-to-day issues, e.g. installation of child-safety window locks and remediation of common property stairwell (that was found to have concrete cancer during expert inspections last last year), both items only really affecting the two top floor lots (which will both be mine), I believe I need at least one other owner to support decisions to proceed with action here. If that is not done, would I simply need to submit an application to NCAT? If current proceedings were ongoing, would I be able to tack these items on to my current application, or at least the concrete cancer, also being failure in obligations under s106 of the SSMA?

    Regarding becoming a strata committee member, which I was previously for ten years before being kicked off after commencing proceedings, if the other owners try to prevent me from joining at the next AGM, can I also prevent them, and how might this issue be resolved, without seeking compulsory appointment of a managing agent?

    Whatever the case, will I only have power to act with my 50 per cent vote after settlement? Up to settlement, would the current owner of my newly acquired lot remain as holder of the vote at any AGM and SC (the current owner is the Secretary)?

    Lots of questions so I understand you may not be able to respond immediately but appreciate your consideration of my queries in advance. My next hearing is in just over a week.

    Huge thanks again to your and your amazing team for all your help to date.

    #398767
    Amanda Farmer
    Expert

    Hi Aitik,

    I think all of these questions lead to the same answer: the fact that you are now (or are soon going to be) the holder of 50% of the unit entitlement makes the scheme more likely than ever before to be deadlocked when it comes to decision-making. This is another factor leading to dysfunction and you should point to it in your argument before the Tribunal.

    On the other hand, your opponents may use this as a way to tell the Tribunal “things have changed”: now that you hold 50%, another owner may be prepared to side with you and if they do, all will proceed smoothly (and compliantly) from now on – per your wishes, as you will have the balance of voting power.

    On that basis, they may ask the Tribunal not to make the compulsory management order yet, but wait to see how this new regime plays out. That could be attractive to the Tribunal.

    If you were able to show the Tribunal how your new status as 50% UE holder is already making the functional management of the scheme impossible, that would be helpful.

    Amanda.

    #398773
    Aitik
    Member

    Thank you Amanda.

    #398888
    Aitik
    Member

    Hi Amanda

    Can an Applicant vary Orders sought by the Tribunal from the last Directions Hearing and the formal special fixture hearing?

    Aitik

    #398921
    Amanda Farmer
    Expert

    Sorry Aitik, I don’t understand that question.

    #398973
    Aitik
    Member

    Hi Amanda

    Sorry about that. What I mean is…

    There have been several Directions Hearings and due to expert report findings my Orders sought as an Applicant have changed/been varied throughout proceedings.

    The Tribunal joined an Owner as a joint Respondent part way through and I ended up making one Order sought against the Owner.

    Ultimately, the Tribunal would not have power to make Order (seeking payment) against the Owner (despite joining them as Respondent).

    To be succesful in this claim my Order would need to be against OC and not the Owner (second Respondent).

    The Tribunal due date for submissions ahead of formal hearing have passed although the “special fixture” (formal) hearing is not yet scheduled.

    Can I apply to Tribunal and alter Orders sought, specifically varying wording as Order against Owner to being Order against OC?

    Kind regards

    AitiK

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