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Patrick H.
Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5185
Experience:  Dip Law LPAB - Sydney based lawyer
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How do you join the real guilty party in the NSW district

Customer Question

How do you join the real guilty party in the NSW district court matter as a respondant? A lawyer who is a caretaker suing the owners corporation ...go figure!!


Our former caretaker is suing us . We are the owners corporation and I am the secretary of the Exec Committee.  It is a  NSW strata matter where a caretaker contract was not struck by the owners, as is law ( strata schemes management act 1996)  but by the Strata Manager ( delegated OC chair , secretary and treasurer) and the caretaker using 3  proxies. This caretaker  had a pecuniary interest at stake. removing his 3  invalid proxies, only 2 out of 19 owners voted . This is far less than the 5 needed to make the  1/4 of owners at an AGM to achieve a quorum on any resolution. Also 2 Office Bearers approved the transfer from original caretaker to the current bloke when a General meeting and decision of all owners is required. When we realised we gave 30 days notice to this  terrible caretaker and now he has issued a letter of demand for the  balance of the contract and saying we terminated. He is saying he will sue us  in the district court and had SneeXXXXX XXXXX and Gallup write a letter for him .


We have $1 million in  office bearers liability cover for the office bearers but not the Owners Corporation. The office bearers who did this dirty on us are long gone, but contactable.  How do we legally rope  in the office bearers who made this decision as the owners never had a say , other than to end it. We'd like to  trigger the office bearers liability cover ? 

If we go to the CTTT for termination would this stop the District Court matter or would it proceed anyway. 

The property is in NSW


Submitted: 2 years ago.
Category: Australia Law
Expert:  Patrick H. replied 2 years ago.
Hello and thank you for your question.

Your dispute appears to be, in essence, a simple contractual claim where the caretaker is suing you for unpaid amounts under the caretaker agreement, and you are defending the claim by alleging both that the contract was not properly made (due to the lack of a quorum) and that he has not provided satisfactory services.

Unfortunately, regardless of whether the contract was properly entered into, unless this was addressed immediately and at the outset, a court or tribunal is most unlikely to accept that the contract was invalid merely because it was not properly entered into as the owners failure to take issue with it, whilst accepting his services for any significant period would be taken as a waiver of that issue by the Owners Corporation.

As to the poor quality of the work this caretaker has done, that is an issue for evidence and may well entitle you to have terminated the contract, but it is not a basis for suing the previous office bearers, unless you can show some level of deliberate fraud.

If there was some fraud on the part of the office bearers it might allow the Owners Corporation to cross claim against the office bearers, but even then, joining them won't trigger the office bearers insurance to protect the owners corporation, it will only protect the office bearers against the Owners Corporation claim, not the Owners corporation against the caretaker's claim.

In any event, if you intend to argue about the validity of the caretaker contract, or about cross claiming against the office bearers, then your matter is far too complicated to litigate without briefing a lawyer to prepare and represent your case.

If you need assistance finding a lawyer with strata expertise, contact he Law Society as they can refer you to suitable strata scheme lawyers:

I appreciate this may not be the answer you were hoping for, however, it does reflect the legal reality of your situation and I trust assists your understanding as to how to proceed.

If there is further information or follow up questions you require then please ask and I will try to assist you further, otherwise please rate my answer so that I can be paid by the website operator for my time.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Customer: replied 2 years ago.

Does it matter that the owners corporation were only became aware of the invalidity issue as we assumed our strata manager would not dud us like this ?

We had no idea until last October and the contract was 5 years in. Does this make any difference.

If we now try for termination in the CTTT then would that stop district court action if we got in first?

Hey thanks , you are really helping, it is a bad situation.


Expert:  replied 2 years ago.
If the members knew he was doing work on the property then they will be taken to have know their was a contract and even if they did not know the details of it, neither a court or tribunal would find that there was no contract, unless the caretaker had somehow induced the agreement by fraud. It would be very hard to argue that if the contract has been on foot for five years.

Even if the court held the contract was invalid, he would still be entitled to so much as is fair, which really only results in you arguing about whether the work he did was satisfactory given the money he was charging.

I cannot say how the court or tribunal would deal with you have a separate action in the CTTT (only a fully briefed lawyer familiar with the details of both cases and the status of the district court proceedings can advise you of that). What I can say is that the District court has considerable discretion to deal with situations of of this sort, and might let the actions run separately, or order that the issues be joined together before the court to be dealt with simultaneously. As a general rule it is usually best to bring all such proceedings before the same court if possible as the cost of multiple actions in multiple venues will be MUCH greater in the long run.

Please rate my answer so that I can be paid by the website operator for my time.

Please note I am only paid if you rate me with three or more stars/smileys.

Thank you and good luck.

Patrick H., Lawyer
Category: Australia Law
Satisfied Customers: 5185
Experience: Dip Law LPAB - Sydney based lawyer
Patrick H. and other Australia Law Specialists are ready to help you
Customer: replied 2 years ago.

We took the view given the lack of a valid contract and the fact that the that we paid him monthly it meant we had a month to month arrangement and the contract couldn't be enforced. We elected to give him a months notice that we would be ceasing paying him. Does that mean we have terminated or could it be viewed as a suspension while we get legal advice. The motion we passed that we cease paying him until such time as we have evidence of a legal obligation to do so. Does this give us any options in your view. He y thanks heaps, you are getting 5 stars.

This is really a b ad situation for us . he knew we had termites and didn't bother to tell us. he shut down facilities and refused to reopen them and we reckon that he repudiated the contract by outsourcing parts and charging us for these on top of the contract payments. Do you see any joy for us in any of that?

Customer: replied 2 years ago.

What about the rule of mitigation given he has a job 4 days a week elsewhere already. Would he likely get the 5 years? He offered to sell the contract a year ago for $22k ( one years salary)


Expert:  Patrick H. replied 2 years ago.
Hello again.

Because your strata manager had knowledge of the terms of his original contract and he would likely be found to be an agent of yours, then you have continued to let him work all this time on the basis of that contract, means that the court will likely find the contract is valid. So the only argument I see you likely to successfully run at this point, assuming the evidence favours you, is if his work was of such poor quality that it fell short of what the contract required him to do. In short you will presumably be arguing that he effectively breached the contract.

If his work was sufficiently poor then it may have justified you terminating the contract, which is effectively what you have attempted to do when you determined to cease paying him. So if the court/tribunal finds in your favour then you should be excused from paying him from the time the court is satisfied the contract was properly terminated. Alternately the court could discount his contract price to reflect the apparent shortfall in his permformance.

If he succeeds then he may argue that the contract has not been lawfully terminated in which case he may seek orders for either damages and/or to be reinstated for the remainder of the contract term.

If in the course of his role he was found termites then arguably he had a duty of care to warn the owners corporation (this may depend on the extent of his duties under the contract) in which case you could perhaps sue him for any damage which has resulted from his failure to report the problem. You would likely need to be able to establish when he knew.

Whether he was entitled to charge you for parts will depend on the terms of the contract, but caretakers are not usually responsible for the material costs associated with repairs, and these usually are an additional expense for the Owners Corporation.

I trust the above assists.
Customer: replied 2 years ago.

His contract specified pruning these palm trees around the pool . He refused and paid someone else and then handed the bill t us. or just paid it from our funds as he was also strata manger.

Same with changing lightbulbs , he got in an electrician we had to pay for it.

Does this constitute repudiation of the contract and he has already in effect terminated.


So could a likely course of action be we say he breached , repudiated and the contract is invalid and thus termination, he disputes and we go to CTTT in dispute or does he drive the next step and choose the venue. Can we go to CTTT , will they hear it as he has stated he was ready willing and able to do the job, when in fact he outsourced it , didn't do it and abused us while doing it.


Expert:  Patrick H. replied 2 years ago.
If such work was included as his responsibility in the contract then he can subcontract it out, but he still has to cover the cost of doing so. The parts - lightbulbs, replacement plants, etc would normally be extra, but not the outside labour costs.

From what you said before proceedings are already on foot, in which case you should run your case there as part of those proceedings. If no proceedings are on foot the CTTT would be the appropriate venue if it is just going to be contract dispute, but if you want to also counter claim for losses due to his failure to notify you of termites, or other types of claim against the office bearers, then then you should probably bring proceedings in the district court, but in any event should brief a lawyer to prepare such a claim as there will be too many legal and procedural issues to proceed without legal representation.

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