New Ideas For Strata Disputes
July 22, 2021
It’s inevitable that there’ll be strata disputes [or strata differences as I called them in my article ‘Better Ways to Approach Strata Differences’] and they’re not going away in hurry; even with new mindsets and better education.
In almost all strata disputes the stakeholders adopt the mechanisms set out in the applicable strata laws and use the government provided facilities and institutions like New South Wales’ Strata Mediation, Queensland’s Body Corporate Commissioner’s Conciliation, Tasmania’s Recorder of Titles, or NCAT, VCAT, QCAT, and all the other CATs.
But, given the number of complaints I hear about these government run services, it’s not because they are happy with these processes or the outcomes which are generally slow, cumbersome, costly, and unsatisfactory.
In my article ‘Australian Strata Disputes Analysed by the Numbers’ I reported on the relatively low number of formal strata disputes compared to the number of strata buildings and strata lots in Australia and suggested that:
‘there’s a disproportionately lower use of Tribunals to resolve disputes as a result of problems with the processes and Tribunals than there should be’
So, why don’t we try something completely different with strata disputes [or at least a few of them]?
After all, how much worse can anything else be than what we’ve been doing for the last few decades?
A few alternatives for strata disputes
So, here are a few alternatives ideas I have for new ways with strata disputes.
- Private mediation and conciliation services
Why not use private mediators or conciliation services rather than the government-provided services? After all, mediation/conciliation already needs the parties to agree.
Private mediations/conciliations will be faster and easier to organise and will bring more interested, skilled, and motivated people [they’re being paid to do the specific job] into the dispute to help resolve it.
It will cost a bit more money for the parties [but if they’re legally represented they spending money anyway] and any outcome is hard to enforce [but try and enforce a New South Wales Strata Mediation agreement nowadays anyway].
Some states’ strata laws [New South Wales and Victoria] already recognise non-government mediations as the first step in formal dispute resolutions.
- Private binding arbitrations or expert determinations
Like private mediation or conciliation, why not take the whole strata dispute to a binding private dispute process with an arbitrator or expert?
Strata stakeholders are able to agree to have their strata dispute resolved privately and do that in a way that legally binds them. Plus, is very typical that in major strata disputes the outcome needs some kind of formal strata meeting decisions/s to be properly implemented so that will guarantee the results for the parties.
Private dispute processes also have the advantage of letting the parties choose the decision-maker, finding an expert if the dispute involves technical matters, controlling the timing and location of hearings, and agreeing to faster processes. In bigger disputes, they can also be cheaper than multi-day hearings.
Plus, the process is more flexible and doesn’t always need all the directions, pleadings, evidence, hearing, examinations and cross examinations, submissions, etc of Court or Tribunal hearings. I’ve certainly been asked to write a few formal and binding opinions on strata issues as an expert over the years to resolve strata disputes.
These private dispute processes are very common in large and complex commercial disputes instead of using superior Courts for exactly those reasons.
And, it’s common for management statements in New South Wales part strata schemes or other large building complex umbrella agreements to require disputes to be resolved by private arbitrations.
- Online automated dispute tools
Perhaps smaller strata disputes should be resolved by an automated and artificial intelligence powered online system that doesn’t involve people as decision-makers but, rather, a structured computer programme and algorithms.
Sounds impersonal and unsatisfactory?
Well, it’s happening already in many more instances than you might imagine.
For instance, Ebay has been resolving disputes between buyers and sellers for quite a long time online by an automated process run entirely by their algorithms at their Resolution Centre.
And, in British Columbia, Canada [which is very similar to many Australian jurisdictions] the Civil Resolutions Tribunal has introduced online dispute solutions in an effort to relieve pressure on the courts by filtering out a significant volume of the smaller disputes. That includes disputes in strata buildings with their Strata Solution Explorer.
These systems don’t need to be government run [although they can] and, in my opinion, might be better if they’re not. What matters to strata stakeholders in a dispute is that the process is quick, fair, transparent, reliable, and consistent.
So, who’s interested in setting one of these systems up with me?
- Go straight to the superior Courts
Why not simply bypass the specialised strata law dispute resolution processes and go straight to the Supreme Court with strata disputes?
All Australian strata laws provide separate rights to take matters to superior Courts so it’s certainly possible. And, despite concerns about the cost of Supreme Court action, it avoids the time loss and costs of multiple sequential processes [mediation/conciliation, adjudication, Tribunal hearing, Tribunal Appeal, etc] which can sometimes be very expensive for strata stakeholders in a dispute.
Plus, as I’ve identified in my article ‘NCAT Appeal Panel Goes 0 for 2 in Supreme Court’ Tribunal decisions often get overturned when they get considered by the highest Courts and are found wanting from a legal interpretation and application perspective. Parties will certainly get better jurisprudence there and the rest of the strata sector gets binding and reasoned decisions interpreting and applying strata laws as precedents.
So, it could be too many strata stakeholders’ advantage to reframe their strata disputes into something that their Supreme Court can and should consider.
There were many times I’ve advised my client’s to go straight there rather than spend months [or years] and tens of thousands of dollars on NCAT or VCAT actions.
- Decision by strata owners forums
And, now for something completely different.
Why not submit internal strata disputes between strata owners and/or residents to a general meeting for a decision by the rest of the strata owners on a majority vote?
After all, the strata owners are the ultimate decider about everything else in their strata building, and who better understands the real impact of the issues in the dispute than the people in the same building? Plus, judgment by your peers is the essence of jury trials and the original principles of law and societal jurisprudence.
A strata dispute could be summarised by the strata committee [or someone else on its behalf] including the issues, the relevant legal principles, and potential outcomes. Each of the parties could address the meeting with their propositions. And, then the strata owners vote on their preferred result which binds everyone but is not a precedent for future disputes.
There might be some biased decisions made [but aren’t they happening already in strata buildings and strata disputes] and all the usual strata meeting tricks would be played by cunning strata stakeholders.
But, I’d say that after a little while we might see a bit more contemplation by strata owners of the old adage ‘it might be me next’. Plus, the fear of public judgment in a strata meeting might cause many strata owners and residents to rethink what they’re doing before it gets that far.
If nothing else, it will certainly help get strata meeting quorums up and provide everyone with a lot more interesting strata meetings, which isn’t a bad thing.
It also makes me think of the Tricoteuse: the old women knitting at the guillotine during the French Revolution.
My ideas for new ways to handle strata disputes in this article are a combination of the conventional, evolutionary, innovative, and, radical.
Whatever you think of them, I hope you can see that they have features that make them better than the strata law based and government processes to a greater or lesser degree for different stakeholders and in different kinds of strata disputes.
So, let’s see if anyone tries something different in strata land for their strata disputes.
This article was contributed by Francesco Andreone – Go Strata