This article is about whether you have the capacity to pursue a strata dispute. Is it worth the toll?
Three things to consider about your capacity to proceed with a dispute:
- Financial capacity is only one of the capacities you need available to get involved in a strata dispute.
- There are many capacity issues people fail to consider including time, emotional, sleep, and social.
- Everyone thinks they will win a litigated dispute but, at best, only half do.
Watch the 3.5-minute explainer video
Capacity to proceed
When lawyers talk about capacity, it’s often in the context of people’s mental capacity – so with an ageing population it may be a person’s competence to make decisions.
In strata we really don’t have that as an issue, but capacity still has an important part to play for anyone who wants to engage a lawyer in relation to a strata dispute.
Capacity issues in a strata dispute
When you’re talking about litigation or having a dispute with someone, financial capacity is the first thing that usually comes to mind.
Can you afford what it’s going to cost? And of course, the costs in any type of litigation can vary. And financial capacity is where most people stop.
But in strata there are other capacities you need to consider.
The first one is time. Lawyers need instructions. You’ll need to take time out of your day, and the things you would rather be doing, to review material, meet with lawyers, potentially go to hearings, and to take into account all of the issues you’re being asked to make decisions on.
Another one is emotional capacity. For me, this is a big issue in strata.
What’s your capacity to deal with revisiting the issues that are the genesis of your dispute?
The reality is, when you’re giving instructions, you’re going to have to go back through issues that happened 6, 12 or 18 months ago, and review them to make sure they’re accurate. That means you’re going to get dragged back into issues that might be, at best, distasteful, or often, extremely upsetting.
Another capacity to consider when you’re involved in any type of dispute is your capacity to sleep. You’re going to wake up at 2 in the morning thinking about things that happened. Things that should have happened. Things you should have done. Things that might have been done by the other side, and so on. And that will continue for as long as that dispute runs, and perhaps even after it is over.
The other thing that is unique to strata is what I call social capacity.
If your dispute is with another occupier and you’re both living in a scheme, you’re going to see them.
You’re going to run into them in the lift. You’re going to see them at the pool. You’re going to see them passing in the car park. If you’re having a normal contractual dispute, you rarely see the person you’re arguing with. In strata you sometimes can, and that can be very awkward.
So those are the capacities that you need to consider before engaging in a dispute; it’s not just about the money.
Is it worth the toll?
One final caveat:
Courts or tribunals don’t declare a draw. They declare winners and they declare losers.
That’s a very binary choice. It’s yes or no. No one goes into litigation thinking they’re going to lose. Courts usually have 100% of people thinking they’re going to win, and half of them don’t.
What you can do
Before commencing any litigation, you need to be realistic about your prospects of success and about your capacity. Be clear that any dispute is about more than the money.
Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500
This post appears in Strata News #713.
This article has been republished with permission from the author and first appeared on the Hynes Legal website.
Read next:
- QLD: Navigating the dispute resolution process
- QLD: Q&A Dispute Resolution Proceedings and By-Law Breaches
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