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Unhappy with the strata scheme building report and secretary’s decision?

How to review a decision under the Strata Schemes Management Act 2015.  

A decision to review a decision under the Strata Schemes Management Act 2015 (NSW) (the Act) may have significant implications to parties involved in the strata scheme.

For more information on the scheme, view our article here.

A decision under the Act includes:

  1. A decision to appoint a building inspector to carry out the final building bond defect report;
  2. A determination to vary the period of when the interim or final inspection report is to be provided or any other action that is done under the scheme;
  3. A determination that a developer is not required to arrange for a final report; and
  4. A decision that whole or part of the building bond may be claimed or realised for payment to the developer or the Owners Corporation;
  5. A decision to refuse to make a payment to the Owners Corporation because the Builder or Developer was refused reasonable access to rectify defective building works.

However, not all is lost if a party does not agree with the decision by the Secretary of the Department of Finance, Services and Innovation (the Secretary) as that may be reviewed.[1] It is important to note that a decision cannot be reviewed if payment has been paid in accordance with the decision or the decision has already been reviewed.

Who can apply to review a decision?

An interested person has a right to apply to the Secretary for a review of a decision under the Scheme.

An interested person is defined under the Act as: [2]

  • The developer;
  • The Owners Corporation;
  • The Owner of a lot; and
  • The Builder.

What are the requirements for the review application?

Should you wish to review a decision in accordance with section 213 of the Strata Schemes Management Act 2015, you must comply with the strict requirements under reg 56 of the Strata Scheme Management Regulation.

Those requirements are:

  • Any application must be made within 14 days of the decision;
  • provide submissions and the basis for why you wish for the decision to be reviewed;
  • any additional information that is available and may not have been submitted originally.

The review is conducted by a member of staff of the Department of Finance.

What can the reviewer determine?

On review, the department can make any decision that was originally open to it.

In the event a review is sought by the developer, release of the bond to the owner’s corporation will be stayed.

However, if you’re not satisfied with the review, you may wish to pursue proceedings in the Courts or the Tribunal, for example:

  1. Where the developer is not satisfied that the whole or part of the building bond that will be released to the owners corporation;
  2. Where the department has advised that a building inspector is not required to carry out a final report (presumably because there were no defects in the interim report);

Key takeaway – the Building Bond is designed to ensure the strata bodies have access to funds to rectify defective building works, time periods are critical and parties must be alert to strict timelines if they do not agree with the building inspector’s reports.

If you have any questions regarding your rights to review a decision by the Secretary, please do not hesitate to contact Morrissey Law + Advisory.

This article was prepared by Hamish Geddes and Mary Ann Wen.

[1] Strata Schemes Management Act 2015 (NSW) s213.

[2] Strata Schemes Management Act 2015 (NSW) s213.

Disclaimer: This publication by Morrissey Law & Advisory is for general information and commentary only and should not be considered or relied upon as legal advice. Formal legal advice should be sought in relation to any matters or transactions that may arise in relation with communication.

2018-09-10T10:18:30+00:00 September 7th, 2018|Construction disputes, Construction Law, Strata Defects|