What to do if you have no supporting paperwork in a strata dispute in NSW

Introduction

Strata disputes in New South Wales can become especially challenging when you have no supporting paperwork to back your position. Missing documents, whether lost to damage or poor record-keeping, often leave lot owners and owners corporations uncertain about how to prove their case.

Drawing on a successful outcome achieved by PBL Law Group’s NCAT strata lawyers in the case Owners SP 47383 v McCullum [2022] NSWCATCD 283, this guide explains practical strategies for navigating a strata dispute without conventional evidence, helping you understand your options and the importance of alternative forms of proof.

Interactive Tool: Can You Keep Your Unapproved Strata Structure?

The Challenge of a Strata Dispute Without Paperwork

Factual Background of The Owners SP 47383 v McCullum Case

The case of Owners SP 47383 v McCullum [2022] NSWCATCD 283 centred on a dispute over a car space enclosure. The lot owner, Mr McCullum, constructed the enclosure for his car space, Lot 109, in 1995.

The enclosure’s key features included:

• Metal sheeting side walls
• A roller door
• Bolted into the common property floor and using the common property wall as its rear

These components formed a permanent structure on common property.

The owners corporation initiated proceedings, arguing that the enclosure was an unauthorised structure built on common property, an issue that can sometimes be resolved through retrospective approval for unauthorised strata works. In response, Mr McCullum maintained that:

• The then-executive committee had unanimously authorised its construction in 1995
• This authorisation complied with the Strata Titles (Freehold Development) Act 1973 (NSW)
• The enclosure was necessary to protect his property from vandalism, theft, and a rat infestation

The Core Problem: Missing Strata Records

The primary challenge in this dispute was the complete absence of paperwork to substantiate Mr McCullum’s claim of approval.

The executive committee’s authorisation had been formally recorded in the minutes of a 1995 meeting. Unfortunately, those records were no longer available.

Mr McCullum, who served as the committee secretary, had stored the minutes in his garage. The documents were subsequently damaged by water ingress and had to be discarded, leaving him without the documentary evidence needed to prove that the original approval had been granted.

Building Your Strata Case Without Documents: A Four-Pronged Strategy

The Power of Witness Statements & Testimonies

When documentary evidence is unavailable, verbal evidence from credible individuals can form the foundation of your case, raising the question of whether verbal agreements in Australia are they legally binding. In the absence of meeting minutes, witness statements can substantiate claims and provide essential context to a strata dispute. This approach involves gathering testimonies from people who have direct knowledge of the situation.

In the case of Owners SP 47383 v McCullum [2022] NSWCATCD 283, several key witnesses provided crucial evidence:

• The lot owner testified about the original reasons for building the enclosure, the executive committee’s approval at the time, and the unfortunate circumstances that led to the destruction of the written records.
• A former committee member recalled discussions from 1995 regarding the enclosure and confirmed that no breach notices were ever issued, nor were any complaints made about it.
• The original strata manager highlighted that under the by-laws applicable in 1995, specifically by-law 16, formal approval was not required for such a structure, as it was intended for security.

Arguing the Balance of Probabilities

The legal standard of the “balance of probabilities” requires proving that your version of events is more likely to be true than not. This principle is particularly useful in a strata dispute where an action or structure has been accepted for a long period.

The prolonged, unchallenged existence of a structure can create a powerful inference in your favour. In the case study, the enclosure stood without objection from 1995 until 2020. We argued that it was more probable than not that the structure was approved at the time of its construction.

The Tribunal noted the fact that numerous executive and strata committees had not challenged it for 25 years supported the inference that it complied with the by-laws.

Using Estoppel as a Defence in Your Strata Dispute

Estoppel is a legal principle that can prevent a party from arguing something that contradicts their previous conduct or statements. In a strata context, if an owners corporation has knowingly allowed a situation to continue for years without objection, they may be “estopped” from suddenly demanding its removal. This is especially relevant if the lot owner has incurred costs based on the owners corporation’s inaction.

This defence was successfully used in the Owners SP 47383 v McCullum [2022] NSWCATCD 283 case, where the owners corporation’s silence for over two decades was a key factor. In this case, we successfully argued that their inaction gave rise to several forms of estoppel, including:

• Conventional estoppel
• Estoppel by conduct, which includes silence
• Estoppel by standing by

Relying on the Presumption of Regularity

The “presumption of regularity” is a legal concept which presumes that actions and procedures were carried out correctly and lawfully, unless there is evidence to prove otherwise. This can be a valuable tool when official records, such as meeting minutes, are missing.

The long-standing nature of a structure can support the presumption that it was approved through the proper channels at the time. This principle was applied to infer that the enclosure must have received at least informal approval in 1995.

Since the structure was built and remained unchallenged for so long, the NCAT determined it was more probable that it was done lawfully. As the tribunal noted, this presumption led to a “conclusion of regularity of that approval” in the absence of any records to the contrary.

Understanding the Favourable NCAT Outcome

How By-laws Can Support Your Strata Claim

The by-laws in force at the time a structure was built are the ones that determine its legality. In the case of Owners SP 47383 v McCullum [2022] NSWCATCD 283, the original 1995 by-laws were central to the Tribunal’s decision, as the enclosure was constructed that year.

A key factor was by-law 16 of the model by-laws that formed part of the Strata Titles (Freehold Development) Act 1973 (NSW), which applied at the time. This by-law permitted a lot owner to install certain devices without needing written approval from the body corporate, including:

• Any locking or safety device to protect the lot from intruders.
• Any screen or other device designed to prevent animals or insects from entering the lot.

The NSW Civil and Administrative Tribunal (NCAT) accepted uncontradicted evidence that the car space enclosure was built for valid security and pest control reasons. Because the structure served these purposes, the Tribunal found that the lot owner was entitled to install it under by-law 16 without needing formal approval from the strata scheme’s body corporate.

The Tribunal’s Findings on Approval & Estoppel

The Tribunal found that there was uncontradicted evidence of, at the very least, informal approval from the 1995 executive committee for the enclosure’s construction. The lot owner’s own evidence suggested there was even formal, minuted approval, though the records were later destroyed.

Furthermore, the Tribunal determined that the legal principle of estoppel applied. The owners corporation’s failure to challenge the enclosure for 25 years amounted to estoppel by conduct, which includes silence when action would be expected. Because the strata scheme stood by for decades while the owner incurred the cost of the enclosure, they were prevented from later demanding its removal.

Practical Steps for Your NSW Strata Dispute Without Paperwork

Gathering Alternative Forms of Strata Evidence

When formal documents are unavailable, you can still build your case using other forms of proof. Visual records can be particularly powerful in supporting your position in a strata dispute.

Consider collecting the following types of evidence:

• Photographs and Videos: If the dispute involves a physical issue, such as property damage or an unauthorised structure, visual evidence is essential. For example, in the Owners SP 47383 v McCullum [2022] NSWCATCD 283 case, photographs were submitted to demonstrate that the car space enclosure did not unreasonably interfere with the line of sight.
• Records of Past Communications: Review any past emails, text messages, or letters that may relate to the dispute. Even if these communications do not directly resolve the issue, they can provide important context and serve as valuable circumstantial evidence.

The Role of Expert Evidence in a Strata Dispute

Depending on the nature of your strata dispute, an opinion from a qualified professional can significantly strengthen your case. Expert evidence helps to clarify the technical issues in dispute and provides a credible, independent basis for a decision.

For instance, if your dispute relates to structural problems within the building, you could engage a building inspector or an engineer. Their professional assessment can offer an authoritative perspective that supports your claims before a tribunal or court.

Considering Alternative Strata Dispute Resolution

Formal tribunal proceedings are not the only path to resolving a strata dispute, and it’s worth preparing for strata dispute mediation as a viable alternative. Alternative dispute resolution methods are often a practical choice, particularly when your evidence is not strong.

Options available under the Strata Schemes Management Act 2015 (NSW) include:

• Internal dispute resolution processes
• Mediation through NSW Fair Trading

A significant advantage of these approaches is that the evidentiary burden is substantially lower than in a formal tribunal hearing, making it easier to reach a settlement without extensive paperwork.

Conclusion

Resolving a strata dispute in NSW without supporting paperwork is challenging, but a successful outcome is achievable with the right legal strategy. By leveraging witness testimonies, alternative evidence, and key legal principles like estoppel and the presumption of regularity, you can build a strong case.

If you are facing a complex strata dispute, it is essential to consult with PBL Law Group’s experienced strata dispute lawyers for expert legal advice tailored to your situation. Our strata lawyers can help you understand your options and provide guidance on the most effective strategies for strata dispute resolution.

Frequently Asked Questions