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Owners Corporation workshop Oct 2012: VCAT hot tips

Dec 13, 2012

At our Owners Corporation Workshop held in October 2012, Anton Block, Principal Lawyer and Head of our Owners Corporation practice, provided a list of tips when settling disputes through VCAT.

Below are the notes provided during the presentation.

1.  Consider is the dispute an Owners Corporation Dispute as defined by the Act?  If not, consider is there other enabling jurisdiction that gives VCAT jurisdiction to hear and determine the matter. This may place the dispute in a different VCAT List.

2.  Consider whether the assistance of a solicitor is necessary, either to assist with the preparation of the application or to appear at the application.

3.  Consider whether the dispute resolution procedures under the OC rules and Act have been followed – in particular consider sections 23 to 32 (re recovery of fees) and 152 & 153 (re complaints concerning breaches of the OC Act, Regulations or Rules) of the Owners Corporation Act.

4.  Consider whether a special resolution is required as a precondition to issuing legal proceedings. (Note: it is not required for proceedings to recover fees and other money and to enforce OC rules.)

5.  Complete the correct VCAT Application Form including all parties who may be affected by the decision, as respondents.  Note that if the Owners Corporation is making the application, the applicant must be the Owners Corporation and not the manager.

6.  For recovery of Owners Corporation fee matters, consider:

  • Have the fees been properly set at the AGM and the correct fee charged relative to the lot liability?
  • Have the extraordinary fees been properly set and the correct fee charged relative to the lot liability?
  • Have you sent the proper notices in the correct form (see www.consumer.vic.gov.au)
  • Can you prove service of the notices?

7.  Prepare a detailed chronology of the incidents or issues forming the basis of the dispute.

8.  Gather together all documents (including letters, emails, diary notes, agreements etc) which are relevant to the dispute.

9.  Consider who witnessed the incident or is a witness to the facts the subject of the dispute.

10. Recruit the assistance/co-operation of those witnesses.

11. If appropriate take photographs of the subject matter.

12. In anticipation of a mediation, compulsory conference or hearing, review and be familiar with the chronology, supporting documents and photographs.

13. On the day of the mediation, compulsory conference or hearing, arrive at VCAT at least 30 minutes before the scheduled commencement time to give you an opportunity to find the allocated hearing room, get your bearings and catch your breath.

14. If you as manager are appearing on behalf of the Owners Corporation, make sure that you have written authority from the Owners Corporation to appear on its behalf and take that authority with you to the mediation, compulsory conference and/or hearing.

15. Take your chronology, supporting documents and photographs with you to the mediation or compulsory conference.

16. Also take your witnesses with you when going to the hearing.

17. Make copies of the chronology, supporting documents and photographs for the tribunal member and for the other side and take them with you to the hearing.

18. When speaking to the tribunal member, address the member as “Sir” (if male) or “Madam” or “Mam” (if female)

19. Present your case to the tribunal member, stating at the outset what you are seeking and then telling your story chronologically and clearly.

20. Listen carefully to questions asked of you by the tribunal member and answer the question asked.

21. Be confident in your presentation.

More information

For more information, please contact Anton Block, Principal Lawyer and Head of Owners Corporation, on (03) 8600 8833 or ablock@kcllaw.com.au.

Note: This update is a guide only and is not intended to constitute legal advice.