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[Gloucester19]

Being in a new apartment development in the Victorian capital for the first time, I’ve found the first strata committee to be composed of developer employees (the majority) and owners, all elected by a tonne of proxies. How long, please, are developers and their apparent proxy allies allowed to remain on the committee? How long must we face developer proxies?  Hopefully not until we reach the end of the developer liability periods for owners.  One solution now, if we’re still stuck with developer employees, is to move at the coming AGM to increase the OC-authorised committee size to the maximum to obtain committee seats, hopefully, for some independent owners. Is this a plausible idea or might the developer just fill up the extra seats with employees and owner allies using proxies?

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[Jimmy-T]

First of all, check who the proxy votes were and how they were allocated. In Victoria, as elsewhere, proxy holders are emtiled to one proxy for buildingings of 20 lots or fewer or  up to 5 per cent of the number of units.

For instance, if your building has 95 units, then proxy holders would be entitled to four proxy votes each if you have 150 units then it would be seven each (since you can’t have part votes).

The reality is that your four developer stooges can’t have more than 20 percent of the vote.  Your challenge is to get more than 20 percent voting to replace them at the next AGM (if not before).

So you could challenge the last election, if proxies were misused in some way, or just campaign with owners to change things and get more than 20 per cent of the vote in support.

     89D   Restriction on number of lot owners on behalf of whom a proxy may vote on a resolution

(1)  A person must not vote as a proxy on a resolution at a meeting of the owners corporation—

(a)  on behalf of more than one lot owner—if there are 20 or less occupiable lots on the plan of subdivision; or

(b)  on behalf of more than 5% of the lot owners—if there are more than 20 occupiable lots on the plan of subdivision.

(2)  Subsection (1) does not apply if—

(a)  the lot owners for whom the person is authorised to vote on behalf of are members of that person’s family; or

(b)  the person votes as a proxy in the prescribed circumstances.

There is another potential avenue – and you really need to talk to an experienced strata lawyer about this. If you had any evidence of misuse of their power, in terms of favouring the developer to the detriment of the owners, you might consider invoking Section 117 (1c) and (2) to argue that the developers representatives have an inbuilt conflict of interest by holding a majority on the committee, their collective power going beyond an advisory capacity.

117 Duties of members of committees and sub‑committees

(1)  A member of a committee or sub-committee of an owners corporation must, in the performance of the member’s functions—    (c)  act in the interests of the owners corporation.

(2)  A member of a committee or sub-committee of an owners corporation must not make improper use of the member’s position to gain, directly or indirectly, an advantage for the member or for any other person.

You might then apply to VCAT under section 165 (1)(h)

165 What orders can VCAT make?

(1)  In determining an owners corporation dispute, VCAT may make any order it considers fair including one or more of the following—

(h) an order appointing (with the person’s consent) or revoking the appointment of—

(i)  the chairperson of the owners corporation;

(ii)  the secretary of the owners corporation;

(iii)  a member of a committee or sub‑committee of the owners corporation;

Again, I would stress that you need to talkto an experienced strata lawyer.

And finally, albeit at the risk of a backlash from your fellow owners, there’s always the media, as per this similar story from the Age online: Melbourne property: Adrian bought a glamorous new home in Southbank’s Normanby building. Then there was a $3000-a-year catch

 

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[Gloucester19]

Thank you very much Mr T for this guide.

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