Facing a strata dispute without paperwork can be challenging. Evidence plays a vital role in legal proceedings, but sometimes traditional forms of documentation are unavailable due to loss, damage, or poor record-keeping. In these situations, you might wonder how to proceed and gain the court’s trust without supporting paperwork.
Successful outcomes in strata disputes are possible even when conventional evidence is lacking. For instance, a recent case at the NSW Civil and Administrative Tribunal (NCAT) involved a lot owner who had lost crucial documentation due to damage. Despite this setback, the case was successfully argued.
This article will explore strategies for handling strata disputes when faced with a lack of supporting paperwork. We’ll discuss alternative approaches to building a strong case and gaining the court’s confidence in such circumstances.
Case Overview: Disputed Car Space Enclosure in NSW Strata
The dispute centred on a car space enclosure constructed in 1995, with the building’s common property wall serving as its rear boundary. The owners’ corporation claimed the enclosure lacked proper authorization, arguing that approval was necessary due to its impact on common property.
Our client maintained that the enclosure was built in 1995 to address security concerns, including vandalism, theft, and pest issues. They asserted that the executive committee had unanimously approved its construction. According to the Strata Schemes (Freehold Development) Act 1973, which was in effect at the time, the executive committee held the authority to approve such works.
Furthermore, our client argued that formal authorization wasn’t required for the enclosure’s construction at that time. The request for approval was made out of courtesy, and the use of the common property wall was within the scope of the 1995 by-laws.
The primary challenge in this case was the lack of documentation supporting the executive committee’s 1995 approval. While the approval had been recorded in meeting minutes, these records were later damaged by water and subsequently discarded. As a result, our client had no physical evidence to support their claims.
Litigation Strategy: Overcoming the Lack of Documentation
Given the absence of supporting paperwork, our legal approach focused on four key strategies to build a compelling case:
1. Gathering Witness Statements and Testimonies
We presented our client’s testimony, detailing the need for the enclosure, the executive committee’s courtesy approval, and the unfortunate loss of meeting minutes.
A 1995 executive committee member provided testimony, recalling discussions about the enclosure and noting the absence of complaints or breach notices at the time.
The 1995 strata manager testified that while he couldn’t remember specific discussions, no formal approval or by-law was required for such enclosures in 1995. He highlighted By-law 16, which allowed lot owners to secure their property as they saw fit, provided no other by-laws were breached.
2. Demonstrating Probability in Favour of the Lot Owner
We argued that the lack of challenges to the enclosure from 1995 to 2020, despite changing executive and strata committees, suggested a higher probability that the enclosure complied with by-laws at the time of construction.
3. Employing Estoppel as a Defence
We contended that the long period without challenges to the enclosure (until 2020) invoked the defence of authorization through conventional estoppel, estoppel by conduct, and estoppel by standing by. Essentially, the current owners corporation and strata management had forfeited their right to object after remaining silent for years while our client bore the costs.
4. Invoking the Presumption of Regularity and Affirmative Satisfaction
This legal principle suggests that established circumstances create a more probable inference favouring one party based on common experience. We argued that the enclosure’s unchallenged existence until 2020 implied a higher probability of at least informal approval in 1995. The fact that the enclosure was built and remained unchallenged for so long supported this inference.
Based on these arguments, the NCAT ruled in our client’s favour, dismissing the owners corporation’s case.
Key Strategies for Handling NSW Strata Disputes Without Documentation
Facing a strata dispute without supporting paperwork? Don’t worry – you still have several options to build a strong case. Here are alternative forms of evidence you can use to support your position:
1. Gather Witness Testimonies
Witness statements can be powerful evidence in disputes. Ask individuals who were present during relevant events or situations to provide statements or testify on your behalf. In our case, we relied heavily on testimonies from our client, a 1995 executive committee member, and the 1995 strata manager.
2. Seek Expert Opinions
Depending on the dispute’s nature, consider consulting experts. For example, in cases involving structural issues, a building inspector or engineer could provide a professional assessment. Expert evidence can help clarify key issues and provide a solid foundation for decision-making.
3. Use Visual Documentation
If possible, document the issue visually through photographs or videos. This is particularly useful for property damage or rule violations. Visual evidence can be compelling in supporting your case. We submitted photos of the enclosure to demonstrate it didn’t unreasonably obstruct views or extend beyond our client’s parking space.
4. Review Past Communications
Check for any records of previous communications like emails, texts, or letters that might indirectly support your position. Even if they don’t directly address the current issue, they can provide context and serve as circumstantial evidence.
5. Consider Alternative Dispute Resolution
The burden of proof in alternative dispute resolution is often less stringent than in formal court proceedings. If you lack substantial evidence, consider resolving the matter through internal dispute resolution and executing a settlement deed. Strata mediation through NSW Fair Trading is another option under the Strata Schemes Management Act 2015.
By employing these strategies, you can build a strong case even without traditional documentation. Remember, creative problem-solving and thorough preparation can often compensate for a lack of paperwork in strata disputes.
Conclusion
Navigating strata disputes can be challenging, especially when lacking proper documentation. While the strategies outlined can be effective, it’s important to note that the best approach may vary depending on the specific nature of your dispute and the relevant strata laws.
Remember, each case is unique and may require a tailored strategy. The absence of paperwork doesn’t necessarily mean you can’t build a strong case, but it does require creativity, thorough preparation, and a good understanding of alternative forms of evidence.
If you’re unsure about how to proceed or feel overwhelmed by the complexity of your situation, it’s advisable to consider seeking legal advice from a professional experienced in strata law. They can provide personalised guidance based on the specifics of your case and help you navigate the intricacies of the dispute resolution process.
Strata disputes can be resolved successfully even without traditional documentation. By leveraging witness testimonies, expert opinions, visual evidence, and exploring alternative dispute resolution methods, you can present a compelling case. The key is to approach the situation strategically and gather as much relevant information as possible to support your position.
Remember, the goal is to find a fair resolution that upholds your rights within the strata scheme. With the right approach and professional guidance when needed, you can effectively address your strata dispute, even in the absence of supporting paperwork.
