Where a defect occurs in property, it is not great law that wins the day in a court or tribunal. It is the selection of the independent expert who would normally win the day.

Any evidence that can be brought to the table by an asset manager is helpful and important in any legal case. Unfortunately, it is not paramount to success. The courts consider that a landlord or an owner’s corporation are self-interested. They see the argument from their perspective only, and are seeking the best outcome for themselves. Additionally, a property manager or strata manager represents the landlord or the owner’s corporation. Although the courts and tribunals except that property managers and strata managers are professionals, they recognise that they are duty bound to protect their client. Don’t take this personally, it is the same for solicitors and barristers. Courts consider that we must put our client’s best case to the court in an adversarial system, and therefore only give some weight to our perspective.

In an asset dispute, it is your independent expert who is vital. Your independent expert will provide you:
• A list of the defects as perceived under the law;
• A fair measure for remedying that defect;
• A cost assessment of that remedy.

When a matter is heard in a court or tribunal on construction issues, court will “hot tub” the experts. They will put both the experts in the witness box and get them to talk about the defects.
What we have found is if two experts exist with good experience, the area of dispute is minimise. And defect is defect, and no one can deny the defect exists. The only difference usually is the manner in which it is to be repaired. The courts put them in the box together so that they can test each other regarding what is right and wrong. This allows an unqualified judge or member to make an appropriate decision. What normally happens, is under proper examination, most of the matters are resolved.

In property management, we use the list of self-interest document to put our case:
• Ingoing condition report;
• Outgoing condition report;
• Routine inspection;
• Photographs;
• A number of quotes or receipts from tradespeople.

These quotes come from tradespeople who hope to get the job. Weight is given to the trades persons information, but it is barely independent.
Don’t get me wrong, the legislation gives great credence to the incoming and outgoing inspection reports. Without them, you will lose before the tribunal. Unfortunately, there are two basic questions which these documents don’t serve to answer:

• What caused the damage;
• Who should be responsible to repair it, and how much should that contribution be.

Considering the introduction of tenant advocates before the tribunal and the increasing value of disputes in that forum, we may need to enter a modern age. Where these damage or defects occur, it may be necessary to have the outgoing inspection report undertaken and a report provided to the agency by an independent person. This level of independence may result in much better outcomes in NCAT.

I know this sounds like there’s another layer of bureaucracy to tenancy remedy, but it may be the way of stopping some of our whinges. The industry often complains that NCAT gets it wrong, however, we really complain when they don’t receive the normal evidence that a court of record deserves.

 

This article was written by Bailey Compton, Principal Solicitor & Director at Leverage Group.

To get in touch with Bailey, please email info@leveragegroup.com.au