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[Wirihana]

The bylaw in my strata plan won’t allow me to “keep” a dog more than 350mm tall but I don’t live in the unit, I live in the country and visit the city unit with my 450mm-legged dog, usually only for one or two days a week.  Is this still considered “keeping” or is the pet just a visitor and therefore exempt? 

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[Boronia]

@Wirihana said:
Thanks for your postings again guys, Whale, I would consider one or two days a week a casual visiting basis as opposed to residency. 

I find it hard to accept that you could be classified as a “visitor” when you are the owner of the property. The length of your occupancies, even one night per month, would be irrelevant.

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[Jimmy-T]

@Wirihana said:
Yes Jimmy, it is a large scheme and I am unable to find anything in the legislation that only permits proxies to be presented to the original meeting and not to the adjourned meeting. 

I think we need look no further than the official proxy form – which must be used for proxies – which defines the proxy to be issued “for the purposes of meetings of the owners corporation (including adjournments of meetings).” 

In a footnote at the bottom, the form says: “This form is ineffective unless it … is given to the secretary of the owners corporation at least 24 hours before the first meeting in relation to which it is to operate (in the case of a large strata scheme).”  The bold emphasis is mine in both case.

I’m no lawyer but I would take those two statements to mean that proxy votes for an adjourned meeting have to be valid for the original meeting.

The reason I thought that the meeting could be declared invalid was because it was not called by a formally convened executive committee meeting.  I understood this to be necessary and a function that cannot be delegated to the strata manager (Mgt Act Schedule 2 31 (2)).

Schedule 2, 31, (2) says this: “A general meeting of an owners corporation … which is not an annual general meeting, may be convened by the executive committee at any time.”

 I don’t see anything in that clause that precludes a strata manager from calling a general meeting if they have delegated powers (as most do). All it says is that an EC can call a meeting any time it likes.  In fact, if owners holding 25 percent of the votes ask for a meeting, in the absence of the secretary, any member of the EC can call the meeting.

For further clarification, I’m indebted to our friends at Strataman whose excellent website says this about Extraordinary General Meetings (any general meetings that aren’t AGMs):

EGM’s are held:

when a special matter (that cannot wait until the next AGM) needs to be considered – such as to authorise major works, raise a special levy, change by-laws, appoint a Strata Manager, etc

when a request for an EGM is received by the Executive Committee (EC) from one or more persons eligible to vote and having a unit entitlement value of at least 1/4 of the total unit entitlement for the scheme

when there is a majority vote of the Executive Committee for the holding of an EGM

How to convene an EGM

EGM’s are convened by the secretary of the Owners Corporation (OC) or the Strata Manager … forwarding a notice of meeting to all owners, first mortgagees and covenant chargees, as shown on the strata roll.

 

 

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[Wirihana]

JimmyT said:  I’m no lawyer but I would take those two statements to mean that proxy votes for an adjourned meeting have to be valid for the original meeting.

So that means that if I can attend the original meeting but am unable to attend the adjourned meeting I am unable to use a proxy at the adjourned meeting. How would anyone know that the meeting is to be adjourned? Should everyone attending a meeting file a proxy at the first meeting in case it is adjourned? Doesn’t sound right to me.

As for EGMs being held “when there is a majority vote of the Executive Committee for the holding of an EGM”, call me pedantic but how can you have a majority vote without a meeting?  Is a chat in the corner of a pub sufficient?

 

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[Jimmy-T]

Two points:

You were at a meeting at which proxies were disallowed because a) they were too late for the first meeting and b) because they were disallowed for the first meeting.

I have quoted a Fair Trading document that explains why that would have been the case.

I also think you are confusing the word ‘may’ with ‘must’ – there are several circumstances under which a meeting may be called – one of them being that enough owners petitioned the EC secretary or that the EC members decided that there was good enough reason to hold a meeting. 

Given that the General Meeting is the “highest court” within strata, I can’t see the problem with the EC deciding on a ‘ring-around’ to hold a meeting provided that meeting was properly notified to all owners as required by law.

Otherwise I don’t think you can read too much into owners being given a chance to express their views and vote on what they want.

As for the proxies being disallowed – in the first place it was because someone hadn’t taken the time to find out how proxies actually work.  For goodness sake, it says on the bottom of the form that they have to be in 24 hours before the meeting. Or did they not have the proxies on the correct form.

The second rejection was on a technicality and while someone who was at the first meeting might not be able to make it to the second, you have to draw the line somewhere.

I totally get why most people don’t understand most of what goes on in strata.  But if I was about to lose a beloved pet or have to move home, I’d make damned sure I found out what I needed to do.

There is good introduction to all this — the Strata Living pamphlet issued by Fair Trading.  It covers most of the points raised here.

 

 

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[scotlandx]

These are all very fine technical points, and you could spend a lot of time and effort with little chance of having the motion declared invalid.

 

if you have the numbers your best bet would be to request an EGM and overturn the motion that way.

 

In terms of convening a meeting, that can be done in a number of ways, some of which are detailed in the legislation.  But many are just convened, with no formal resolution – if they weren’t there would be a lot of schemes not having general meetings.

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[Kangaroo]

Wirihana,

It looks like your reinforcements arrived at the battlefield a day late.

Why not simply call another battle, as you seem to have enough (25%+) support to requisition an EGM.

There may have been a technical breach if the adjourned meeting was held only 6 days after the first.

Schedule 2 clause 12(4) of the Act says:

If a quorum, as provided by subclause (2), is not present within the next half-hour after the relevant motion or business arises for consideration at the meeting, the meeting stands adjourned for at least 7 days.

and clause 13(2)(b) says:

notice of that time and place must be served by the Secretary on the members of the owners corporation at least 1 day prior to the meeting.

But it would be quicker (as Scotty said) to call a new EGM than to lodge a complaint, maybe have the meeting invalidated, and what … be ordered to hold the meeting again?

I did read somewhere, maybe even in this forum, that it was “established law” that the adjourned meeting was a continuation of the original meeting not a new meeting, therefore proxies had to be delivered (for a large scheme) 24 hours before the original meeting.

But law is not (necessarily) justice, and I agree with your logical deductions. A person who attends the original meeting but cannot attend the adjournment is disenfranchised by not being allowed to submit a proxy. And the only way to prevent that is to give a proxy for the original meeting and to override it by turning up and voting personally.

Anyway, after the Gov’s proposed changes, you’ll probably never hear of an adjournment again.

And, don’t hate the Chairman. As Jimmy said, he may have been “nit-pickingly precise”, but if he hadn’t been, someone else could have lodged a complaint, and it (probably) would have been upheld.

Also, the EC can resolve to issue a NTC, so your Chairman was considerate in calling an EGM to obtain a wider view.

You also said:

I also submitted a general meeting agenda item to change the existing by-law, stating that it is unreasonable and unworkable and that it should be replaced with the standard by-law option A.

Lucky that didn’t pass! Option A allows only fish. And don’t ask for option B either, because for dogs it only allows those of the “small” persuasion.

Write your own.

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[Wirihana]

It’s been a while, but since I last wrote on this topic I have had the opportunity to consult with a Fair Trading legal and technical expert, and I can now clarify a few points mentioned in previous postings:

 

1.  An EC can ONLY convene an EGM by holding a properly convened EC meeting with agenda, vote and minutes.  A telephone or email vote or an informal meeting is not permitted. 

2. This function can NOT be delegated to a strata manager (despite what your beloved Strataman says, sorry Jimmy!)

3.  A general meeting can be invalidated and ordered to be re-held if it is not convened properly, but this would only happen if the outcome of the meeting may have been different had it been convened correctly.

4.  The legislation does not have a definition of the “first meeting” when it comes to proxies but Fair Trading takes the view that participation is more important than exclusion, so if proxies are delivered within the required time period before an adjourned meeting, that meeting should be considered the “first meeting” and they should be accepted. 

5.  An EGM adjourned due to lack of quorum must be at least seven days after the first meeting, irrespective of the requirement in Part 2 Div 1 clause 13 2b which says that “notice of that time and place must be served … at least 1 day prior to the meeting”.

As for my dog’s legs, advice on calling an EGM with owner’s support is gratefully acknowledged, but in a large scheme like this, and as a new resident, I don’t actually know most of the people who were at the EGM and voted in favour of allowing larger dogs, and it would be difficult to track them all down.

The good news is that the EC has agreed to revisit the bylaw, survey resident views and take submissions on how it might best be changed.  One would hope that common sense will prevail, I’ll let you know! 

 

 

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[Jimmy-T]

@Wirihana said:
…  since I last wrote on this topic I have had the opportunity to consult with a Fair Trading legal and technical expert, and I can now clarify a few points mentioned in previous postings:

1.  An EC can ONLY convene an EGM by holding a properly convened EC meeting with agenda, vote and minutes.  A telephone or email vote or an informal meeting is not permitted. 

2. This function can NOT be delegated to a strata manager (despite what your beloved Strataman says, sorry Jimmy!)

Setting aside your sarcasm, it depends which function you mean.  It’s true that the Strata Manager can’t just decide to call an EGM, but they can, acting as secretary under delegated powers, respond to an appropriate signed request from 25 percent of owners.  

And, I firmly believe, despite the opinion of your Fair Trading “expert” – which cites no legislation and quotes no part of the Strata Act or regulations –  that decisions made at an EGM that was called by informal agreement of the EC but was otherwise compliant with the regulations in terms of the issuing of agendas and minutes, would stand (for reasons you yourself have stated).

This website and the related newspaper column have dined out for years on the misinformed opinions of Fair Trading employees who turn out to be no better equipped to give definitive and legally binding answers than you or I.

Show me a case where the decisions of an informally agreed but otherwise kosher EGM have been scrubbed because the EC didn’t have a proper meeting and I will dance at your wedding (which is more than I did at my own). 

4.  The legislation does not have a definition of the “first meeting” when it comes to proxies but Fair Trading takes the view that participation is more important than exclusion, so if proxies are delivered within the required time period before an adjourned meeting, that meeting should be considered the “first meeting” and they should be accepted.  

This is an incredible – and by that I mean, I don’t believe it – exercise in semantics.  Let’s be absolutely clear on this: If an owner tried to use proxies that were too late for the initial meeting and then didn’t bother to have them updated for the second meeting and they were used to pass a contentious issue, the losing side would quite rightly drive a truck through the loopholes this created at NCAT and, I hasten to add, the expert from Fair Trading who offered this opinion would not be party to the decision.  There is a reason there is no definition in the Act of what constitutes a “First Meeting” in this context and that’s because there is only one possible meaning for the phrase. The form asks proxy providers to put a date on the form and says it must be presented 24 hours before the first meeting to which it applies. What other possible interpretation could there be?

All that aside, I fear we are straying into Bush Lawyer Land with all this stuff. The most important thing from your post is that your agitations have led the EC to prompt a review of your pet by-laws.  Surely that is the right way to get things done properly and everything else – mistakes and missteps included – is just taffeta.

This is what the Act says:

31   When general meetings of owners corporation are required to be held

 

(2)  A general meeting of an owners corporation (in this clause referred to as an extraordinary general meeting), which is not an annual general meeting, may be convened by the executive committee at any time.

(3)  The secretary of an executive committee … must convene an extraordinary general meeting as soon as practicable after receiving a requisition for such a meeting signed by one or more persons entitled to vote in respect of one or more lots, the unit entitlement or the sum of the unit entitlements of which is at least one-quarter of the aggregate unit entitlements.

 

 

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[Wirihana]

Hey Jimmy I wasn’t being sarcastic, just frisky!

However I detect a hint of fulmination in your response so let me reiterate a few points.

 

When I said “an EC can ONLY convene an EGM by holding a properly convened EC meeting“, I was referring to clause 31 (2), not 31 (3). 

I thought I had made that clear in the use of words “an EC“.

You previously suggested that a strata manager could adopt this function and quoted strataman as reinforcement.

The legislation makes no provision for decision-making at casual EC meetings or over the phone so clause 31 (2) means a proper meeting must be held.

 

And yes you are right, decisions at an unlawfully convened general meeting could stand unless the outcome would have been different at the same meeting, had it been lawfully convened.

In this matter I had the option of having the meeting invalidated, because I thought the vote may have been different and an agenda item was missing, but I chose not to pursue that path. 

 

As for your cynical disparagement of a Fair Trading expert, I imagine that I would do the same with a paid opinion to the contrary from an expert in a top law firm, if it was not what I wanted to hear. 

The expert I met did cite legislation and quoted from regulations but I did not reproduce all details in my previous post for the sake of brevity.

In fact I called the Fair Trading help line three times and was given the same advice each time. This was then confirmed by the senior officer who I met in person.  She also added that the “first meeting” definition was frequently a point of contention and was another good reason for the legislation to be changed. At which point will you believe our public servants one wonders? 

 

As for the proxies, an adjourned meeting is still a meeting in its own right is it not? There is no definition to the contrary! As I mentioned previously, if I used your definition of first meeting the process is unwieldy to the point of ridiculousness. To make sure my vote was registered I would have to provide a proxy before the first meeting in case it was adjourned, even if I turned up.  Then I would have to cancel it if I did turn up, so then how would it apply at the adjourned meeting? Can you reinstate a cancelled proxy at an adjournment?  That would appear to be a new proxy would it not? And not applicable any more as it is not the “first meeting” (using your definition) where it was cancelled? 

 

And I am not sure what you mean when you say “then didn’t bother to have them updated for the second meeting”.  Are you suggesting that the adjourned meeting is a second meeting?  And if so how would you update the proxy which only applied to the first meeting?  If it is just the date that matters then any date before the first or adjourned meeting should suffice.

At the meeting that I disputed, the proxies were presented within the correct time frame with correct dates for the adjourned meeting but were still refused.

 

PS why didn’t you dance at your wedding? 

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[Jimmy-T]

In the interest of keeping the readers of this website properly informed (rather than scoring points to win an argument) I have found the evidence that supports Wirihana’s case and undermines mine:

In this matter, an appeal against an adjudication that a decision to pass an exclusive use by-law did not stand because the EGM at which it was passed was not called by a properly constituted executive committee meeting.

I present this with the following cautions:  Decisions of the CTTT (as was) were generally not taken as legal precedents, even in the CTTT. The by-law declared iinvalid, did affect other owners, removing an option for the Member not to make a ruling; a special resolution by-law is a serious matter that has continuing implications for an owners corporation.

Moving on, if anyone can provide definitive examples of where proxies have been disallowed or otherwise at the CTTT or NCAT because they were too late for the first meeting but still considered invalid for the second, let’s hear them.  Otherwise this issue is closed.

 

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[considerate and fair]

Yes it is closed. But I have to say if I am allowed JT, I found this thread very entertaining. Hilarious the ‘having to carry pets on CP is impractical’. Clearly not heard of “or on a leash”. I love dogs and they have a place in apartment living but I have no tolerance for their sometimes pushy owners and their bullying and the limits they will extend to have their pets in strata buildings when they do not go about things the right way.. Whale is on the money.

Everyone thinks they are a lawyer once they get a hint of the SSMA and some small legal advice.

Does anyone else think Wirihanas last posts were more legal speak than previous?

Cheers,

CBF

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[Author]

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