Now for the reality check
We see this stuff all the time, and if we were consulted by the chairperson before this started our advice would have been:
- you are going to spend an almost unquantifiable amount of money to go all the way. The best we could give you as an estimate is a wide ranging ball park;
- if you win:
- lots, or all of that win, will be soaked up in legal costs, and
- you are going to get back (at best) only a proportion of what you have spent on us from your opponent;
- if you lose, you still pay our costs plus a proportion of your opponent’s costs;
- leaving aside the financial costs and uncertainty, Court proceedings are very stressful. They take a lot of time and the process can get bogged down in minutiae that cost more money. You are not in control of the process and you are going to have lots of sleepless nights;
- the opportunity costs of that can be enormous. What else could you be doing with the time you have that will otherwise be devoted to litigation?
- getting cross-examined is going to be incredibly stressful. Barristers are usually very smart and very well prepared
- you are never guaranteed an outcome in Court – because if you go on the stand you never know who the Judge will believe is more credible (which was very evident in this matter).
What has been spent? Both parties had senior and junior counsel and lawyers for a three-day hearing. A rule of thumb for barristers is that you should do two days of solid preparation for each day of potential hearing. And that is just the hearing. No doubt there were repeated skirmishes all the way though by the lawyers before the matter got to hearing.
We would be very surprised if the chairperson has not already spent what he ended up winning. If and when we see costs orders we will update you.
And, as always, there is mention of the tenant appealing the decision.
Use the 24-hour rule
When you get something that upsets you, sit on it for 24 hours. By all means, draft a response, but let it sit in drafts. Don’t respond immediately. In almost every circumstance, sitting on it for 24 hours will mean you send something far more considered, if at all.
The tenant’s email here was sent the day after an email from the chairperson, but we would be interested in the time they were sent / received at the tenant’s end. Late night emails after a big work day are usually never good.
Frozen fans know what we mean. For those that don’t, Elsa famously sang, ‘Let it go’.
Does this stuff really matter? The tenant could have responded just to the chairperson (even if they did), with ‘thanks for the advice mate, but no.’ They didn’t need to go as far as they did.
The dreaded cc – and even worse the blind cc
They could have just engaged with the chairperson directly, as he had largely done with them. In one email the chairperson even asked:
‘But I see no point in copying it to all and sundry – unless you wish me to?’
In very general terms, defamation is largely making statements to others about someone else that are not true. If there was no one else copied in, there could have been no defamation.
What was the correct legal position anyway?
Can the body corporate make you lock your letterbox? Even more so, can your body corporate make you lock your doors or windows?
It appears that there was an application made by the body corporate with respect to this in the NCAT, which was resolved at mediation. Queensland is the only state that has a specific body (the Commissioner’s Office) which deals specifically with strata disputes.
Source: Hynes Legal