Owners Corporations Blog- Going to VCAT – Tips and Tricks for Owners Corporations

So a lot owners issues an application at VCAT making various complaints about the conduct of the Owners Corporation and or the manager (or both) as well as about committee members. To be clear, the lot owner is just not happy with a range of issues.

The Owners Corporation (OC) is notified of the proceedings.

What should the OC do next?

Sometimes the issue is a lack of communication. The lot owner might only have one complaint. For example, they are concerned because the OC has not fixed some part of common property. Unbeknown to the lot owner, the committee have already agreed to fix the matter and a contractor has been engaged. The simple answer to this proceeding is to get the manager to pick up the phone call the lot owner and explain that the matter is being dealt with and have an appropriate timeline for the remedy communicated. That can lead to the lot owner withdrawing their claim without further VCAT or OC intervention.

However, other times, is not something that can be easily resolved because there is a long history, multiple issues of complaint and a complete breakdown in trust.

At this point, we recommend that the OC engage a lawyer, such as Tisher Liner FC Law who specialises in Owners Corporations law and disputes in Victoria.

A lawyer can review the claim, provide accurate and timely advice as to the strengths of the claims being made and provide practical solutions that might help to have the matter resolved.

If the OC has insurance covering defence costs, a claim on the insurance should be made and can be made directly or via the lawyer. Defence costs usually cover up to $50,000 or $100,000 a year and can help reduce or eliminate the costs incurred with a lawyer and if the claim is one under defence costs (as opposed to a liability to others), the OC can choose their own lawyer.

What are the steps in VCAT?

The first step after the application is a directions hearing before VCAT. It is important to get a specialist Owners Corporation lawyer such as Phillip Leaman at Tisher Liner FC Law involved prior to the directions hearing so appropriate orders are obtained. This is the opportunity to correct parties details. Quite often it is the manager that is listed as the respondent when the claim is actually a claim against the OC and not the manager. This can be resolved, sometimes at the directions hearing.

This provides a VCAT member in the OC list to consider what application is being made, confirm that the parties to the dispute are correct and set down a timetable for the future conduct of the matter. Usually, the Applicant will be required to file formal points of claim that sets out the legal basis for the claim, the parts of the Owners Corporations Act 2006 and Regulations the Applicant says the OC is in breach of and the orders that the Applicant is seeking the Tribunal make. The Applicant also needs to set out the factual matters and particulars that support the claims being made. An Applicant can also provide expert reports or documents that help prove the Applicant’s case.

Once the points of claim have been filed, the OC has an opportunity to file their points of defence which responds to the claims being made. The OC might also file expert reports and other documents if they are relevant.

If the claim is straight forward, the matter is usually listed for a compulsory conference. This is a settlement discussion led by a Tribunal member and an opportunity for each party to communicate their position and discuss the matters in dispute and try (if possible) to get a settlement of all of the issues or at least some of them. Sometimes, some claims will be resolved between the parties leaving a smaller number to deal with a hearing.

Next is a hearing where the parties put their case and the Tribunal makes a decision. Evidence is provided by both parties and submissions on the law provided.

Compulsory conferences are very effective in having matters resolved and are an opportunity that should not be overlooked.

Ultimately, it is the Applicant that has the burden of proof to prove the claims they are making.

It can be difficult for OCs where Applicants are self represented because they set out numerous complaints, sometimes in a non coherent way. Ultimately, it is important to understand what is being complained about, assess whether the complaint is reasonable and a lawful request and then act accordingly.

Need assistance?

For expert assistance and advice concerning Owners Corporation disputes, claims at VCAT and making insurance claims please contact Phillip Leaman, head of our Owners Corporations team at Tisher Liner FC Law.

Disclaimer

The above does not constitute legal advice but is information which may be of general interest. Tisher Liner FC Law will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.