NSW: Q&A Issuing and Enforcing a Notices to Comply with a By Law
Question: Should legal representation be obtained by an Owners Corporation before applying to NCAT for a hearing for failure to comply with by-laws?
Should legal representation be obtained by an Owners Corporation before applying to NCAT for a hearing for failure to comply with by-laws?
At an NCAT hearing regarding continued failure to comply with by-laws, and after serving a NSW Fair Trading Notice to Comply, is it usual for the applicant’s (Owners Corporation) legal costs to be awarded against the offender along with the $1100 fine?
Answer: I would always recommend having legal representation, especially when it comes to enforcing bylaws
To answer the first question, ‘is it suggested to have legal representation’; in NCAT you have to actually seek leave to have legal representation. So it’s not automatic, you have to actually get approval from the tribunal member to have representation.
If representation is approved, generally, the NCAT is a jurisdiction where there’s no cost but you can obtain costs on rare occasions and circumstances but generally speaking, there is no cost, you can’t seek your cost.
I would always recommend, however, having legal representation especially when it comes to enforcing bylaws because sometimes it can be straight forward that they’ve breached that bylaw, but there can be a technicality. Or sometimes how the bylaw has been worded doesn’t actually assist the case, either. So my strong advice to a lot of our clients is to seek legal advice on the bylaw and ensure that it’s worded in a format that can be enforced to the intent. Having that legal advice initially will ensure that if you do take action against that lot owner for breach of that bylaw, that you’re going to have a stronger position in enforcing it and winning in NCAT.
I always generally encourage having legal representation, but you do need to get leave from tribunal and it’s not always guaranteed that you would get costs. In most cases, it’s unlikely that you would get cost, you have to prove that the application was lacking in substance and etc, for you to actually obtain any cost order.
Generally, if you’ve got two parties; lets say you’re the applicant and the defendant doesn’t want to have legal representation, it’s very unlikely that a tribunal member would award cost in your favour against that defendant because they didn’t have any legal representation. Especially if you were the applicant that was pushing to have legal representation.
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