Introduction
Owners Corporations in New South Wales often encounter challenges in managing their strata schemes. Section 238 of the Strata Schemes Management Act 2015 (SSMA) equips the NSW Civil and Administrative Tribunal (NCAT) with the authority to issue orders that can alter the makeup of a strata committee under certain conditions. This provision is crucial for lot owners who need to remove strata committee members not adequately performing their duties.
Overview of Section 238
Section 238 of the SSMA endows NCAT with the power to remove strata committee members or officers who fail to abide by the SSMA, its regulations, or the scheme’s by-laws, or who do not exercise the required care, diligence, or who engage in serious misconduct while in office. This legal tool is vital for maintaining the functionality and integrity of the strata committee.
Legal Principles for the Removal of Strata Committee Members
The Tribunal does not lightly intervene in an Owners Corporation’s democratic process to remove a strata committee member. It requires compelling reasons to do so. The substantial threshold highlighted in cases like McDaid v The Owners Strata Plan No. 60346 and Lockrey v Rosewall underscores the importance of respecting the Owners Corporation’s democratic resolutions.
In Linney v The Owners – Strata Plan No. 11669, the Tribunal emphasised the need for the applicant to show that the issues at hand are severe enough to justify the removal of a committee member.
The case of Vojkovic v Savva broadened the scope, acknowledging that while s 238(2) outlines specific scenarios for removal, these are not exhaustive. The Tribunal may consider other circumstances when contemplating the removal of a strata committee member.
When to Invoke Section 238
Invoking Section 238 is a serious step taken amidst significant governance issues. Such scenarios might include:
1. Failure to comply with the SSMA, the regulations or the by-laws.
2. Failure to exercise due care, skill or engaging in serious and wilful misconduct.
The Process Explained for Lot Owners
It’s crucial for lot owners considering this path to understand the procedural details involved in invoking Section 238. The process includes:
1. Applying for Fair Trading mediation.
2. At NCAT, clearly stating the reasons for seeking removal.
3. Compiling and presenting strong evidence to back up the case.
4. Guiding the application through NCAT, which involves submitting required documents and possibly presenting the case at a hearing.
Conclusion
Deciding to remove a strata committee member via Section 238 is not to be taken lightly. It represents a balance between the need for effective strata management and honouring the democratic governance of owners corporations. For lot owners contemplating this significant step, a well-considered legal strategy and an informed viewpoint are critical. Professional legal advice is invaluable for lot owners dealing with complex issues around the removal of strata committee members.
Should you require advice or assistance in filing a claim with the Tribunal for the removal of strata committee members, don’t hesitate to seek informed legal advice. For further support and specialised guidance on these matters, reach out to Michael Pobi at Pobi Lawyers on 02 8324 7565.
Disclaimer
This commentary is published by Pobi Lawyers for general information purposes only and should not be relied upon as specific legal advice. You should obtain your own legal advice specific to your circumstances before you take any action or otherwise rely upon the contents of this article. The content of this article is subject to change.
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