Investigative Journalism and Learning Hub - Waratah Strata Management Ignored Submission About SP52948 Incomplete Insurance Policy and Validity of Legal Costs Claims on 21 March 2021

From:	SP52948 owner
To:	Robert Crosbie, Stuart Greene
Subject:	SUMMARY: SP52948 Incomplete insurance policy and validity of legal costs claims as of 21Mar2021
Date:	21/3/21, 3:17 pm

Good afternoon,

An update worth documenting.

In addition, a request to notify SUU Insurance in regards to alleged insurance claims for legal costs (they declined to provide quote for FY 2013 insurance due to high risks for legal claims in September 2012 - Lot 158 has full evidence for pending criminal case of fraud and financial misappropriation of funds). The proof of actions is required.

a) Before AGM 2020, Waratah Strata Management were requested to strike out Motion 10:

Motion 10: 10 LEGAL PROCEEDINGS AGAINST LOT 158

Motion must be ruled as "out of order" as it conflicts with the Act, is unlawful, and unenforceable.

According to Strata Community Association (NSW), definition of a Motion:

A proposal put forward for consideration at a meeting. A well written motion will enable the lot owner or committee member to vote yes (for) or no (against) on the matter.

A motion must clearly state the proposal to be considered at the meeting.

Motion must clearly state if an ordinary, special, or unanimous resolution is required.

Motion must disclose pecuniary interests of committee members as per SCHEDULE 2 – Meeting procedures of strata committees of the Strata Schemes Management Act, 2015 (NSW) Section18.

Information was withheld from owners that Lot 158 has been a legal member of the committee since 2016.

Information was withheld from owners that evidence of Solicitor Adrian Mueller’s activities related to CTTT case SCS 12/32675 and 12/50460 through illegal representation of owners corporation and defrauding owners corporation in amount of $62,218.77 (GST inclusive) by November 2014, which resulted in four insurance claims for “Defence of Lot 3” in amount of $24,919.31 ($367.64 on 31 August 2012, $12,714.65 on 7 December 2012, $1,320.00 on 26 April 2013, and $10,517.02 on 4 June 2013), false statements to Office of Legal Services Commissioner in case 41366 in 2013, insurance premium increase above 70% in 2012 due to high risk legal claims, preparation of false statements in strata manager’s Statutory Declaration to CTTT on 19 April 2013, and preparation of strata manager’s Affidavit to District Court in February 2014).

Information was withheld from owners that Waratah Strata Management and committee members received sufficient information during 2020 that satisfies "on the balance of probabilities" and "beyond reasonable doubt" requirements for prosecution.

Information was withheld from owners that Solicitor Adrian Mueller is aware of report of his professional misconduct in Office of Legal Services Commissioner case 56561 since June 2019 and listed as "person of interest" in Police Event E65804633 since July 2017, where he failed to co-operate with the Police.

Information was withheld from owners that NCAT case 20/33352 has been opened due to committee’s refusal to attend free mediation 00351498 at Fair Trading NSW on 17 March 2020 whilst preventing owners from having details of the event.

Information was withheld from owners that Lot 158 made over 20 attempts to reason with the strata manager, building manager, and the members of the committee in 2019 and 2020.

Information was withheld from owners that Solicitor Adrian Mueller failed to respond with evidence to Lot 158 and their legal representative O’Brien Criminal & Civil Solicitors:

14 November 2019

21 November 2019

24 April 2020

20 October 2020

Information was withheld from owners that Lot 158 warned members of the committee to take actions or face NCAT and other legal consequences in emails on:

1 May 2020

27 July 2020

29 July 2020

20 October 2020

Accounting figures for FY 2020 contain expenses of only $2,940.00 for legal and debt collections fees for whole FY 2020 in spite of alleged engagement of Solicitor Adrian Mueller and an unknown barrister throughout late 2019 and 2020. Legal costs are much higher and it is questionable who paid for them and where are these costs logged in accounting.

Copy of the Standard Costs Agreement was not provided to owners since September 2019, when Solicitor Adrian Mueller was engaged at committee meeting on 5 September 2019.

Copy of the Standard Costs Agreement for AGM 2020 was not available on Waratah Strata Management web portal.

Audit report for FY 2020 was prepared 11 days after the AGM.

b) At NCAT Hearing 20/33352 in February 2021, Solicitor Adrian Mueller could not prove or provide any evidence of his retainer, nor any owner got copies of signed Standard Costs Agreement.

Motion 9 at AGM 2020 failed to disclose to owners that Waratah Strata Management represented owners corporation at Directions Hearing on 25 September 2020 and could not prove legality of their contract since AGM 2019.

NCAT and Solicitor Adrian Mueller did not deny these firm allegations.

Nevertheless, Solicitor Adrian Mueller failed to comply with NCAT orders to provide evidence by 20 November 2020 and was also late with the short submission (without any substance or quality) that arrived on 25 January 2021. Yet again, the Respondent failed to comply with Tribunal’s order that “the parties must attempt to submit their documents by their compliance date”.

c) A costs agreement must be written or evidenced in writing (s. 180(2) of the LPUL). The offer can be accepted in writing or by “other conduct” (s. 180(3) of the LPUL).

It is best practice to have the client sign the costs agreement as evidence of their receipt and acceptance of it. Even if invoices have been paid by the client, this may not be sufficient to protect the law practice from an allegation that the costs agreement is unenforceable.

No owner received a copy of the signed Standard Costs Agreement with any barrister or Solicitor Adrian Mueller since 2017, with special emphasis to period since September 2019.

Waratah Strata Management website contains no copies of signed Standard Costs Agreements or evidence of email approvals of legal engagement.

d) In mid-January 2021, committee members organized rushed Extraordinary General Meeting and again prevented strata and building management tenders to be considered. Also, all Lot 158 Motions at Annual General Meeting on 22 October 2020 were again "disallowed" without legal grounds (they are actually crucial ratification Motions).

e) Strata manager, committee members and their solicitor provided absolutely no evidence for the NCAT Hearing, and provided no evidence to refute ANY statement or document given by Lot 158.

Tribunal member called Waratah Strata Management at the beginning of NCAT 20/33352 Hearing multiple times and strata manager failed to respond.

f) None of the six members of the executive committee showed up at NCAT Hearing. Tribunal member was mildly astonished by such lack of attendance.

g) Solicitor Adrian Mueller appeared on alleged contract with SP52948 and Lot 158 requested that he be struck out from the proceedings due to lack of evidence of his retainer, conflict of interest, repeated failures to comply with Tribunal directions and orders (five times since 2012), being listed as person-of-interest in a Police Event for fraud and Office of Legal Services Commissioner case for professional misconduct.

Instead of dealing with the CTTT/NCAT cases, Solicitor secretly attempted to initiate four alleged “defamation cases”, last time on 21 October 2020 and failed. Lot 158 argued that his persistence to obstruct legal processes disqualify him from acting on behalf of just few owners.

Few cases were used as reference:

Legal Services Commissioner v Yakenian [2019] NSWCATOD [98], about a solicitor of Fairfield in western Sydney, neighbour of Cabramatta and Villawood. He was referred to the NSW Legal Services Commissioner by District Court Judge, her Honour Wass DCJ.The defendants’ solicitor requested particulars of Mr Yakenian’s builder client’s statement of claim and said the defendants would provide defences within a reasonable time after the particulars were given. They invited the solicitor to advise them if he had any difficulty with this course. He did not do so. There was also talk of a security for costs application.On the basis of admissions made by the practitioner, the Tribunal of three members found that the solicitor had breached each of the following rules:A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgements called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable. (Rule 17.1)A solicitor must not deceive or knowingly or recklessly mislead the court. (Rule 19.1). A solicitor must not knowingly make a false statement to an opponent in relation to the case. (Rule 22.1).

In Sadlo v Viceroy Gilead Pty Ltd [2013] NSWCTTT 559 (at [10]): “[10] ... the [respondent] opted to be represented by a lawyer. It had no obligation to do so. The tasks involved in providing evidence, and making submissions at the hearing could have been undertaken by an employee or officer of the [respondent]. The [applicants] should not be obliged to pay an expense the [respondent] had no obligation to incur.”

In Rodny v Stricke (No 2) [2020] NSWSC 1126 (24 August 2020): A solicitor has been ordered to “personally pay” the costs accrued from a delay in court proceedings, citing administrative oversight and COVID-19 restrictions. The decision is the result of a guilty plea in a case where the solicitor represented himself, but the NCAT waved it through without much apparent anxiety about the implications of their findings and issued him with a fine of $7,500, plus costs.

In "elizabeth-bay-road-pty-ltd-v-the-owners-strata-plan-no-73943" case, the following was stated: "Provided that the owners corporation promptly (and after full disclosure) cured the action by approving or ratifying the executive committee’s decision to commence proceedings by passing a s80D resolution at general meeting the NSW Court of Appeal’s decision could be used as authority to defend a strike out motion by the defendant. ... The consequences, as they affect the progress and course of legal action commenced without prior compliance with s 80D, emerge from extensive case law examined by Campbell JA (with whom Giles and Macfarlan JJA agreed) in Doulaveras v Daher [2009] NSWCA 58; 253 ALR 627. The conclusion expressed by Campbell JA (at [150]) was as follows:It is a clear abuse of the process of the court for someone to bring litigation, supposedly in the name of a particular person, when there is no authority from that particular person to bring the litigation. A court will deal with an abuse of process of that kind once it is established that a supposed plaintiff has not given authority for the litigation to be brought. The appropriate way of bringing that sort of abuse of process to the attention of the court, and establishing the facts underlying it, if there is any doubt about them, is usually by a notice of motion seeking to strike out the statement of claim or to stay the action. However, if in the course of litigation it becomes clear to the court that its process is being abused in this way, it will act of its own motion to bring the abuse to an end. It may be that the abuse comes to the attention of the court only in the course of a final hearing, either incidentally as evidence emerges, or as a result of the counsel appearing before the judge agreeing either expressly or by their conduct to litigate the question of whether the action is authorised, and the judge not intervening to require that issue to be decided before the rest of the case proceeds. What is in substance happening then, though, is the argument of a motion challenging the retainer, not the deciding of an issue that can properly be raised by a defence in an action.”'=

Regards,

On 2/2/21 9:21 am, SP52948 owner wrote:

Good morning,

No response was received.

Main website page at Waratah Strata Management still contains incomplete details of the insurance policy as of 2 February 2021.

Regards,

On 21/12/20 8:25 am, SP52948 owner wrote:

Good morning,

As of today, SP52948 insurance policy is still undisclosed for owners and was never provided.

The one-page document available on Waratah Strata Management website is incomplete and does not even contain the details of the POLICY NUMBER.

In addition, alleged current insurance provider (SUU) declined to quote due to high risk in legal case. As of 2020, after eight years, evidence has been collected for NCAT case 20/33352 detailing four fraudulent insurance claims, false statements in Statutory Declaration to CTTT, false statements in Affidavitt District Court, refusal to co-operate with Police, Fair Trading NSW, and Office of Legal Services Commissioner, and more. The four insirance claims in 2012/2013 amounted to above $26,000.00, where CHU Insurance (without even having full evidence that exists now) forced repayment in amount of $8,800.00 in March 2017.

a) Please provide full copy of the insurance policies for FY 2020 and 2021.

b) Please confirm that you notified SUU about pending NCAT case 20/33352 and its full details.

Regards,