not legal advice, as usual.
1 - ONCAT adjudicators imposing legal costs for
LESS THAN vexatious , frivolous etc ( "
unreasonable, frivolous, vexatious, or they have acted in bad faith" ) is
ON BALANCE an undesirable further unbalancing of the dynamics of many condo disputes.
There's frequently already a severe imbalance, arguably what triggers or aggravates some disputes over mis-governance.
Just look at some ONCAT outcomes so far that have confirmed exactly that.
One can see even less reason for extending such awards,
given that ONCAT adjudicators would appear to ALREADY have SPPA authority to punish "unreasonable, frivolous, vexatious, or they have acted in bad faith" etc. 2 - A further disturbing development is that some ONCAT adjudicators already are looking at / citing voodoo site-specific documents to justify charge-backs - NOT expressly platformed within the Condominium Act 1998.
3 - So it's disturbing - but ? not surprising ? - that this quicky questionnaire leaves it to a participant to suggest other relevant parameters.
Such leaves out a biggy : that the Condo Act 1998 itself should expressly be the limit what legal costs are recoverable by either disputant including at ONCAT. eg sections 92, 98, 105, 134 not potentially voodoo Declarations etc
Ominously
in repeatedly presenting "Innocent Condo Owners shouldn't pay for jerks", the ONCAT's "Backgrounder" fails to cite corresponding judicial findings of unlawful liening & voodoo charge-backs by governancers. = a less than balanced rationale by whoever wrote the Survey's "Backgrounder". Or just ignorance. !
4 - And yes : the chance to recover legal costs for mere ignorance would clearly tempt Boards to get full lawyers involved at ONCAT.
Arguably wasn't a central purpose of creating such a Tribunal a fairer dispute resolution within a lower key forum than the conventional civil justice system ? Watch for Hearings routinely becoming motions to obtain & maximize the fees of full lawyers against self-represented disputants
See : "unbalanced" re-asserted at the Tribunal itself !
Unless somewhat shielded by an Adjudicator, widening allowable legal costs might readily head to "self-representeds" routinely facing a reverse onus to disprove "vexatious" etc That's : no matter how they participated, respectful or otherwise.
The so-called
"American System" - where generally disputants expect to suck up their own legal expenses regardless of outcome - affects everybody.
But it may be far more appropriate in wider keeping this Tribunal a cheaper way to resolve disputes . Exactly where does the survey package reflect this ? . .