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I wonder if anyone knows of any success in NSW with removal of Strata Committee members under s 238 of the Strata Schemes Mgt Act?
I read in Flat Chat column in the Australian Financial Review in Dec 2018 as that is an option. I am trying to find out how difficult it is through NCAT?
I am the one and only minority owner within a complex of 3 units – father, son and myself. I am outvoted all the time and not allowed to join the SC. An inspection of the books recently reveal that the Strata Mgr has been paying for private repairs of those owners. I have the necessary evidence.
When queried, the Strata Mgr said to hold an AGM to determine if those invoices for private repairs could be refunded. I don’t think private repairs are to be voted on. They are simply disallowed in the legislation. And holding an AGM will mean that I will be outvoted.
Does anyone have any comments or thoughts as to how to approach this? Please remember that I am a lone minority owner and cannot enlist the support of the other owners. I am thinking of an action under s 57 as well against the agent for breach of its delegated functions.
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It’s difficult to take action under s57 if the manager claims he was doing what he was told to do by the committee. S57 only applies if the strata manager was delegated a responsibility ie treasurer, secretary or chair and in that capacity did something wrong.
Get your evidence together where you show the other owners have enriched themselves and take it to the tribunal. You are going to have to prove that a) OC money was spent ofn lot owners property b) that any work done on common property was not necessary but used to benefit the other owners.Good luck
Why I want to invoke s 57 us that there were no strata committee minutes approving such payments and yes, agent is delegated full responsibility per his strata agency agreement … owners can plead that they relied on agent for his expertise and that the agency did that.
Despite a long and chequered history of highly dodgy strata managers doing extremely dubious things, in NSW at least, no Strata Manager has ever been “struck off” for being really crap at their jobs.
In fact, someone from SCA once told me that they had pursued a case that involved many egregious examples of ignorance and deliberate breaches of the law against a (non-member) strata manager at Fair Trading, only to be told they were “pretty standard practice”.
I was told, several years ago, by the then head of Fair Trading’s section handling Strata Manager’s registrations that when they were given proof of poor behaviour by a strata manager, they would “counsel” the culprit to behave better and do nothing more.
The point I’m making is that going after the strata manager could be a massive waste of time and energy.
The lack of strata committee minutes is significant, but the strata manager will just say they were instructed by phone. Don’t forget that the committee can take back all or any of the roles delegated to the strata manager at any time.
Your problem will arise when the owners say the work done on their units was the repair of common property that was not required anywhere else.
This is one of the very few occasions when I would say that the compuslory appointment of a strata manager is probably your best option.
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.
Good points about Strata Managers, they always claim they discussed the matter on the phone.
So what misdemeanours can an SC commit, with proven, written evidence, that would warrant them being removed by orders from NACT?
Ziggy, s.37 of the ssma requires sc members to work for the benefit of the OC. To me that means the OC’s interest must trump their personal interest.
I cannot find examples of what behavior constitutes such a breach of s. 37
As I read it, such a breach warrants expulsion from the sc. That said, I cannot find cases where s. 238 was invoked when s.37 breaches were proven.
But maybe I was looking in the wrong places.
Thanks very much Shortcrust.
I was recently advised by a strata lawyer that NCAT is loathed to get involved in removing any lawbreakers from an SC. For whatever reason. NCAT seems to take the side of the “owners corporation”. But the OC could simply be made up of SC members only. In other words, the only owners who turn up at meetings are members of the strata committee.
I wonder what other lawyers think?
Maybe the new strata laws will strengthen owners’ abilities to remove SC members who don’t abide by the laws. Fair and HONEST!
Here’s a link to one case re Section 37 of the SSMA:
https://www.caselaw.nsw.gov.au/decision/1968eac47d75ded33b39dfc4
… NCAT is loath to get involved in removing any lawbreakers from an SC.
The new laws will allow committee members to be removed with a vote of >50 per cent of the owners. The real issue is how you can communicate with owners to tell them their committee members are misbehaving when the committee and the strata manager control the lines of communication.
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.
Despite a long and chequered history of highly dodgy strata managers doing extremely dubious things, in NSW at least, no Strata Manager has ever been “struck off” for being really crap at their jobs.
This has obviously changed with this decision which is currently under appeal: https://www.flatchat.com.au/strata-trap-manager-first-to-be-banned-for-life/
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.
They don’t have the strata roll to defend themselves to everyone.
They should go to the strata manager, pay their 30-odd dollars and make a copy of the strata roll. If the strata manager refuses, they should tell them that action will be taken at Fair Trading as they are in breach of their duties under the Act.
Strata managers are walking on eggshells at the moment, wondering where the next assault will come from. This is a shame for the good operators who really don’t need this crap in their lives but it is keeping the dodgy ones on their toes.
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.
Controlling those lines of communication can be devastating for some owners. I know of an SC member who repeatedly sends abusive and extremely misleading emails to owners criticising and white anting a particular person. That single owner is left powerless. They don’t have the strata roll to defend themselves to everyone. And pleas to the SC member to send out their response to criticisms is refused.
The only way left for that person is NCAT. Like the strata manager banned for life, can that be possible for dodgy or vengeful SC members?
Jimmy, I doubt strata managers are worried with fair trading looking into their behavior. As you previously wrote, no big stick is used to fine or sanction a badly behaving strata mgr.
At general meetings before any vote I ask for votes to be recorded by u/e or by lot number.
But the strata manager refuses and do the minutes conceal how each lot voted.
How many times must a SM ignore such requests before action is taken by FT?
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