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

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Embarking on a strata dispute without paperwork might seem daunting. Evidence is crucial, yet there are occasions when traditional forms of it, like documents, are simply not available due to loss, damage, or previous neglect in keeping records. So, how do we proceed when such a scenario unfolds? How do you garner the trust of the court sans supportive paperwork?

Among many of our successful cases advocating for clients in strata disputes, Owners SP 47383 vs McCullum [2022] NSWCATCD is an example where we represented a lot owner at the NSW Civil and Administrative Tribunal (NCAT) in a strata dispute. The necessary documentation had been discarded following damage, leaving our client devoid of conventional evidence to bolster his claims. This article elucidates our strategy in navigating through such a predicament, offering guidance on what might be done when faced with comparable situations.

Table of Contents

Factual background of the case

The point of contention in this case was an allegedly unauthorised enclosure of our client’s car space built in 1995. The rear enclosure was the common property wall of the building. The owners corporation argued that the enclosure was constructed without authorisation as there was no evidence supporting approval for the construction. The owners corporation contended that as enclosure affected a part of the common property, approval was necessary for its construction.

Our client’s case was that the enclosure was constructed in 1995 to guard against vandalism, theft by intruders and rat infestation. The then executive committee had unanimously authorised its construction. As per the Strata Schemes (Freehold Development) Act 1973 (1973 Act) applicable at the time, the executive committee was the appropriate body to authorise works. Further, no authorisation for construction of the enclosure was formally required back then. Our client had asked the executive committee merely as a matter of courtesy. The passive use of the common property wall was well within the by-laws applicable in 1995. 

The real challenge in this case was the absence of paperwork supporting the executive committee’s approval in 1995. The executive committee had recorded their approval in the meeting minutes. The client, who was also the secretary of the executive committee, had stored the meeting minutes in his garage. But the records got damaged by water ingress and had been discarded. Our client, hence, had no document to support his side of the case. 

Our Litigation strategy

Given the peculiar circumstances of the case, our litigation strategy had to compensate for the lack of documentary evidence. We decided to use a four-pronged approach to drive the case home, as discussed below. 

1. Submit witness statements and testimonies

We presented our client’s testimony and statement, where he explained his side of the case. He talked about the necessity for building the enclosure, approval taken from the executive committee’s courtesy approval, and how the minutes of the executive committee’s meetings were damaged. 

We examined a member of the 1995 executive committee, who testified remembering a discussion about the enclosure. She did not recall any complaints or issues with the enclosure, or any breach notices being issued to our client at the time.

In his testimony, the 1995 strata manager said that while he did not recall a discussion about the enclosure, no approval or by-law was required to build such an enclosure in 1995. He drew attention to the 1995 by-law 16 which permitted the lot owners to secure their lot in any way they liked providing no other by-laws were being breached at the time. 

2. Prove balance of probabilities favours the lot owner

Our client’s enclosure was not challenged since it was built in 1995 until 2020 by any executive committees and strata committees of varying composition. Further, there was no evidence to show that the 1995 executive committee had not authorised the construction, even if an authorisation was necessary. Therefore, we argued, the balance of probabilities was in favour of our client, suggesting that the enclosure did not violate any by-law at the time of its construction. 

3. Use the principle of estoppel as a defence

We also argued that since there was no challenge to the enclosure up until 2020, it gives rise to the defence of authorisation by operation of conventional estoppel, estoppel by conduct and estoppel by standing by. To put it simply, since the current owners corporation and strata management had been silent for years, and merely stood by as the enclosure was made at our client’s cost, they had no right to oppose the same now. 

4. Raise the presumption of regularity and affirmative satisfaction

The presumption of regularity and affirmative satisfaction means that the circumstances established by evidence or admission raise a more probable inference in favour of one of the parties according to the course of common experience. Here, ‘more probable’ means that the inference has some greater degree of likelihood to have actually occurred. 

In this case since the enclosure was not challenged until 2020, the more probable inference according to the course of common experience was that our client had at least informal approval for the enclosure in 1995. Additionally, the fact that the enclosure was actually constructed supports this inference, as without approval it would have been unlawful and hence, challenged by the strata managing body earlier.

Based upon the arguments above, the NCAT ruled in favour of our client, and dismissed the owners corporation’s case. 

Key Takeaways: What to do in the absence of paperwork to support your side in a NSW strata dispute?

Are you in the midst of a strata dispute with no paperwork to prove your point? The good news is, you still have a lot of options to support your side. Below are some alternate kinds of evidence you can use to drive the case in your favour. 

Key Takeaway #1: Provide witness testimonies

If there were witnesses to the situation or events in question, ask them to provide statements or testify on your behalf. Witness statements can carry significant weight in disputes. In this case, we placed heavy reliance on the statements and testimonies of our client, the 1995 executive committee member and the 1995 strata manager. 

Key Takeaway #2: Present expert evidence

Depending on the nature of the dispute, you might consider seeking expert opinions. For instance, if the dispute involves structural issues in the building, you could consult with a building inspector or engineer who can provide an expert assessment. Expert evidence can help to identify the real issues in dispute and provide a basis for a decision.

Key Takeaway #3: Take photographs and videos

If the issue can be visually documented, such as property damage or rule violations, take photographs or videos as evidence. These visual records can be powerful in supporting your case. In the current case, we submitted photographs of the enclosure to show that it does not unreasonably interfere with the line of site or intrude beyond our client’s parking space.

Key Takeaway #4: Keep records of past communications

Check if you have any records of past communications, such as emails, texts, or letters, that may indirectly support your point. Even if they don’t directly address the current issue, they can provide context and be used as circumstantial evidence. 

Key Takeaway #5: Go for settlement or NSW Fair Trading mediation

The evidentiary burden in alternative dispute resolution mechanisms is substantially less than a formal court proceeding. If you do not have any meaningful evidence in your favour, it might be a good idea to resolve matters through an internal dispute resolution process and executing a deed of settlement. Alternatively, strata mediation by NSW Fair Trading is also an option worth considering under the Strata Schemes Management Act 2015.

Conclusion

Resolving strata disputes can be difficult, and even more so if you do not have proper paperwork in place. Remember that the specific steps you should take may vary depending on the nature of the strata dispute and the applicable strata law. It’s often a good idea to seek advice from a legal professional who can provide guidance tailored to your situation. Our team at PBL Law Group has years of experience with strata dispute resolution representing strata owners, strata managing agents, and owners corporation across courts and tribunals. Request a call back from one of our lawyers today to find out how we can help you today.

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Raea Khan Circle
Director Lawyer
Raea Khan

Raea is Managing Director and Principal Lawyer for PBl Law Group. Raea assists clients with major projects, property developments, construction and strata law.

He has worked in Western Australia and Queensland assisting with expansion projects in the energy and resource sector and now predominately advises clients in Strata and Community Association matters.

He is a member of the Australian College of Strata Lawyers where majority of his work is advising developers and owners corporations with dispute related minor and major defects, strata governance and common property litigation. He is proficient at leading negotiations and meetings.

Raea has a particular interest in the commercial aspect of any dispute and always tries to weigh up the risk, reward and benefit of legal proceedings at each different stage.

Raea enjoys all forms of competitive sport, including Crossfit and actively participates in Triathlons, representing Australia as an age group athlete. He was a member of Red Head Surf Lifesaving club.

  • Strata Law
  • Construction & Major Projects
  • Commercial and Business Law
  • Planning & Environment Law