- This topic has 15 replies, 8 voices, and was last updated 8 years ago by .
-
Topic
-
We have downsized to a home unit in Sydney but find some of aspects of the Act and Regulations a bit unclear and hope that you can clarify Schedule 2, Part 3 Section 9(3) of the SSM Act 2015.
What can owners oppose a strata committee (SC) from making a decision on? Is it anything and everything (as long as it’s reasonable) or does it cover specific types of matters? We haven’t been able to find any information on this.
For example, some people on the SC have knowingly committed serious breaches of the Act in their own self-interests which badly affect many other lots.
The affected lot owners have sought their own independent solicitor’s advice and have been advised to sue the SC or just sue certain people on the SC (but not sue the owners corporation (OC) as a whole) and they have paid their own legal fees from their own pockets.
The SC has retaliated by instructing a solicitor to defend them and have now served notice of a SC meeting that includes a motion to use OC funds to pay their legal fees. As it’s not the OC that’s being sued, can other lot owners oppose the SC from making this decision?
Does it make any difference whether the whole SC is sued or whether only certain people on the SC are sued? Over one-third of lot owners have said that they want to oppose the SC making a decision to use OC funds to defend certain SC members or even the whole SC.
The reason is that owners feel that as the SC members knowingly breached the Act without any consideration for any other owners, they should pay their own legal costs from their own pockets and not from OC funds.
What would the situation be if a SC from another property UNknowingly committed a breach?
-
Replies
-
The part of the Act you cite says this:
(3) Decisions to have no effect if opposed by more than specified owners
A decision of a strata committee has no force or effect if, before the decision is made, notice is given to the secretary of the owners corporation by one or more owners, the sum of whose unit entitlements exceeds one-third of the aggregate unit entitlement, that the making of the decision is opposed by those owners.
So this is saying that if the owners of lots that have one-third or more of unit entitlements oppose a motion on an agenda (in writing, collectively, one might assume) then the agenda item can’t be approved.
I don’t see where the confusion is except you may be wondering how you go about this. Or maybe you don’t understand what unit entitlements are.
Perhaps if you tell us what it is you don’t understand we can explain better.
Regarding the costs, there is provision in the Act for the Tribunal to award costs against the Owners Corporation or the committee and specify that these costs have to:
a) Be raised by a special levy
and
b) That levy should exclude the people on the “winning” side.
As for your last question about another property that unknowingly committed a breach, people acting in good faith are generally exempt from liability for further penalties but if you have been told you are doing something wrong but continue to do it, those personal exemptions evaporate.
I would say that you and your neighbours need to hire an experienced strata lawyer as a matter of urgency and then get them to make sure costs are awarded against the other side.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
I was under the impression (at least in application to NCAT) the owner can only make claims against the Owners Corporation. They cannot make claims directly against the Strata Committee or Strata Agent and must gain support and make claim against these parties by the OC making application.
One area I’ve thought much about is the implications of exercising (or not-exercising) diligently in good faith. I haven’t been about to find much caselaw around these specifics.
What sorts of decisions are the committee making that you disapprove of? I am more familiar with the ACT act than those of other states but I expect they have provisions similar to the ACT. Here certain sorts of decisions can only be made by a general meeting. So, for example, if the act says a decision requires an ordinary resolution of the owners corporation, it is not within the power of the committee to decide. Some matters are covered by rules (aka bylaws or articles), rather than the body of the Act. In those cases, the OC might have resolved to amend those rules in a way that delegates a decision making power to the committee. However, the scope for doing that is limited. Some things cannot be delegated to the committee, even in if the OC wants to because the act says the OC must decide by a particular class of resolution, and that means a general meeting.
I agree with dustyrusty. I wanted to take our SC to Fair Trading (and hence NCAT) but was told I couldn’t; that I could only take the OC to mediation.
Re DNA, the owners in our building have been asked to vote on a motion to create a special bylaw that is unfair and unjust to owner/occupiers.
We therefore don’t want this motion approved because, if it is, we can be fined for requesting that common property be maintained in a good and serviceable state.
@Ziggy said:
I agree with dustyrusty. I wanted to take our SC to Fair Trading (and hence NCAT) but was told I couldn’t; that I could only take the OC to mediation.“taking the strata committee to Fair Trading” IS mediation. It’s a necessary prerequisite before you go to NCAT in most cases. Even if the SC doesn’t turn up, you have to go through the motions. The SC represents the OC in this regard so someone has been splitting hairs.
Re DNA, the owners in our building have been asked to vote on a motion to create a special bylaw that is unfair and unjust to owner/occupiers. We therefore don’t want this motion approved because, if it is, we can be fined for requesting that common property be maintained in a good and serviceable state.
You can only be fined for breaching a by-law. A by-law is invalid if it contravenes the strata Act and since the Act allows you to request request that common property be maintained – and in fact insists that it is – then the by-law would be invalid.
What does the proposed by-law actually say?
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
The bylaw wants to stop owners who live in the building emailing the SC and SM. But we are writing to them about getting things done to/on common property eg upgrade/replace a 35 year old lift, stop illegal visitor parking, fixing the TV antenna, get CCTV in parts of the building etc. Some issues have taken years to be fixed.
The SM will send on our emails to the SC for them to action but they either ignore our emails, are hostile, or take forever to respond. So we have to email them all again. And again, until eventually we get a response that is helpful.
This bylaw would seem extremely unfair to the owner/occupiers.
Have a look at sections 136 and 139 of the Act – there is no way a by-law of that type would survive a challenge.
I suggest you tell them that if they proceed the by-law will have no effect, and if they insist you will apply for an order under section 150 to have it invalidated.
The secretary has a duty under the act to answer correspondence.
43 Functions of secretary of owners corporation
The functions of a secretary of an owners corporation include the following:
(a) to prepare and distribute minutes of meetings of the owners corporation and submit a motion for confirmation of the minutes of any meeting of the owners corporation at the next such meeting, (b) to give on behalf of the owners corporation and the strata committee of the owners corporation notices required to be given under this Act, (c) to maintain the strata roll, (d) to enable the inspection of documents on behalf of the owners corporation in accordance with this Act, (e) to answer communications addressed to the owners corporation, (f) to convene meetings of the strata committee and (apart from its first annual general meeting) of the owners corporation, (g) to attend to matters of an administrative or secretarial nature in connection with the exercise of functions by the owners corporation or the strata committee of the owners corporation, (h) any other functions conferred on the secretary under any other Act or law.
By-laws cannot contradict the Strata Schemes Management Act or any laws for that matter.
136 Matters by-laws can provide for(1) By-laws may be made in relation to the management, administration, control, use or enjoyment of the lots or the common property and lots of a strata scheme.(2) A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.I like to think of the “law” in a transcending hierarchy (honoring some explicit stated exceptions, like parts of Corporations legislation not applying to OCs – which I think is stupid, but anyway).
> Just about every other Act (Civil/criminal)
>> Strata Act
>>> By-laws
>>>> Contracts (e.g. Agent Instrument)
Interestingly, if you breach higher law it can void things below. For example, if a General meeting isn’t convened properly a contract resolved by the OC might not actually be in effect (in terms of legally).
@dustyrusty said:I like to think of the “law” in a transcending hierarchy (honoring some explicit stated exceptions, like parts of Corporations legislation not applying to OCs – which I think is stupid, but anyway).
> Just about every other Act (Civil/criminal) >> Strata Act >>> By-laws >>>> Contracts (e.g. Agent Instrument)
Que?
By the way, the section of the Act that you quote as defining a secretary’s “duty” actually uses the word “functions”. These are very different concepts, as you would discover if you ever tried to lead that argument in a court of law.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
1. You can’t break other laws in exercising/following Strata law. Strata law cannot contradict say Work Health and Safety Act.
E.g. When you maintain common property you can’t save money by doing it dangerously.
2. By-laws cannot contradict Strata Scheme Management Act (or any other laws that essentially SSMA cannot contradict).
3. You can’t execute contracts / agreements on behalf of the OC that contradict By-laws (which can’t contradict SSMA, which can’t contradict other Acts/laws).
Basically just like the Act explicitly says By-laws can’t overstep their authority, everything else implicitly cannot contradict the hierarchy.
* I’m not a legal professional – this is just my understanding. Happy to learn more if I’ve got the picture wrong.
In Qld, as I understand it, you can only sue the Secretary, and that is for defamation if they make some grand yet damaging incorrect public or written statement about someone affected. The rest, as generally being well-intentioned amateurs, can’t be. Though their actions can be over-turned by another vote by the committee or your states commissioner or through a EGM if you have enough owners (25%?) who call it to overturn it.
dustyrusty – if you are not a legal professional perhaps be careful about giving your views re how the law works.
Jimmy is right – the secretary does not have a duty to answer correspondence, the section quoted sets out the functions of the secretary’s role.
I am not sure in what circumstances the terms of a contract would conflict with by-laws, but the by-laws are a contract between all of the owners – if the OC enters into a contract it is holding out to the other party that it can do that.
Flame Tree – neither in Queensland nor anywhere else does the Secretary have an exalted place in defamation law. If a person makes defamatory imputations about someone, either verbally or in writing, they may find themselves in receipt of a civil action. Being secretary of a strata community has nothing to do with it, and nor does being an amateur.
Flametree – Bodies Corporate and Committees in QLD do not have a statutory immunity from defamation proceedings and Committee Members do not have a statutory immunity from civil proceedings generally. Therefore, Bodies Corporate and Committees may be liable for defamation.
See below for an explanation of defamation and the committee.
http://www.hbcm.co/defamation-and-personal-liability-of-committee-members/
Thanks Lady P because I have been defamed by both my SC and my SM. I assumed they were protected, unlike me.
@Ziggy said:
Thanks Lady P because I have been defamed by both my SC and my SM. I assumed they were protected, unlike me.Having been through this process (or seen it at very close quarters) I can assure you that there is no immunity but there is “qualified privilege”.
Basically, if in conducting its business committee has reason to be critical of an owner or resident’s actions, this may avoid being declared defamatory if the comments are not malicious and /or not generally broadcast or viewable by people who are not normally able to access discussions of the committee.
For instance, if your secretary writes something like “This resident is a known troublemaker and serial email pest who takes every opportunity to disrupt meetings with stupid questions and fake allegations of bad behaviour, and then wastes our time with ignorant and ill-informed emails, and it’s time we shut him up …” and puts that on a notice board or a website that is publicly accessible, that would possibly be defamatory because it is arguably malicious and goes beyond the normal management of the scheme.
If, however, the secretary wrote that the resident “has raised a number of issues in writing and in person at meetings, and dealing with those communications has disrupted the management of the building”, and those comments were available in the minutes which were not readily accessible to anyone who was not an owner in the building, then they would probably not be defamatory.
Having said that, I’m not a lawyer. Also, most issues like this would be somewhere on a scale between those extremes. However, defamation action is a game for people with deep pockets and plenty of time on their hands – and there is no guarantee of success.
That said, most strata insurances specifically exclude defamation as an insurable event, so if you have the time and the money and a watertight case, you might want to take a punt or at least issue a warning.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.