www.teyslawyers.com.au © Copyright TEYS Lawyers 2013 Nicole Wilde, Senior Solicitor, TEYS Lawyers Melbourne (03) 9600 1128

A Sneak Peek at the Latest VCAT Strata Decisions

From time to time, most owners corporations will face a level of dysfunctionality. This case shows that it is important to step back and make sure that if you are a Chairperson, Secretary, Treasurer, or Manager, you are acting within your statutory powers…

This case tells the all too familiar story of an owners corporation descending into a state of conflict over one lot owner constructing a fence around his car space, apparently without approval from the owners corporation. The fence was constructed over ten years ago. One faction of lot owners appears to have been determined to have the fence removed. The lot owner who constructed the fence resisted the removal.

During the dispute, general meetings were called that did not strictly comply with the procedural requirements of the Owners Corporations Act 2006 – VCAT stated the decisions made at those meetings would therefore be invalid. The owners corporation’s manager became involved and was accused of being biased in favour of the owner who built the fence. There were issues over whether proxy forms were validly completed. The VCAT was able to scrutinise emails and correspondence between the parties during the dispute.

VCAT made an important observation in this case, which is all too easily forgotten in the every day life of strata:

…the applicants appear to have a misunderstanding about the role of a manager and the decision making powers of an owners corporation. While there can be little doubt that a professional manager will have influence at a meeting that may extend to the court of discussions, the manager does not make decisions. Decisions are made by votes being cast by lot owners or their proxies.

Considering the time and effort put into preparing for VCAT applications, the outcome of this case would have been disappointing for owners who felt they had a genuine grievance. However, it is important at the outset to understand to whom such grievances should be properly directed.

Case Reference: Babray & Ors v Whittles Australia Pty Ltd (Owners Corporations) [2013] VCAT 327 (21 March 2013)

13 August 2013