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[TrulEConcerned]

Good day all,

A couple did a strata search in their process of buying.

They were unhappy with the very few documents they obtained as they had queries regarding some meetings in recent years which they were made aware of by a friend who then lived in the building.

My question is: who is responsible for the missing/lost/stolen documents?

My money is not on the agent as he’s relatively new. He, I suspect has possession only of those documents he was given.

I told the couple to insist on the documents from SC members, some of which have been in the job for a decade and should – if they are responsible adults – have their own hard copies of documents or at least electronic copies. So far they were  told  by 2 SC members that “we delegated functions to the agent including storing documents, so we don’t keep any”. Frankly I think that’s inexcusable. How on earth can those members make future decisions on the same issue w/out earlier paperwork?

Are the SC members above guilty of acting in bad faith? What action can the couple (or any current owner) take against the SC or OC to compel them to pony up the allegedly missing documents?

 

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[fchat56]

Hi,

It is a common occurrence that document search fails to find some (or quite often many) documents.

NSW strata laws are weak and unenforceable.

We know of many horror stories of documents being “unavailable”, lost, or simply hidden from owners and potential investors.

Take a look at these public news (search for phrase “body-corporate-services-and-the-strata-scheme-from-hell”).

We have more bad news.

1) Customer can try to force access through paid document search, which will not help much.

2) Typically, customer then initiates mediation case through NSW Fair Trading. Laws allows strata manager and committee members to decline mediation, so it is a waste of customer’s time.

There were 2909 mediation applications received by NSW Fair Trading in 2022, compared with 1994 in 2018.

The most common issues for mediation related to repairs and maintenance of common property and breaches of by-laws, a NSW Fair Trading spokesperson said.

Of 2909 mediation applications, just 963 resulted in mediation, while 835 were dropped, with the respondent refusing to participate; the remaining 616 applications were either resolved before mediation or withdrawn (search for SMH news article with phrase “the-extra-obstacle-for-owners-clashing-with-body-corporates-over-building-defects”).

3) Then, customer goes to NCAT.

We have direct evidence from multiple CTTT and NCAT cases where they did not help, or did not want to help.

In one case, an owner hired highly skilful Criminal & Civil Solicitor to obtain access to already paid files. Solicitor failed. And when the case went to NCAT, the Tribunal ignored it, even when the strata manager and committee members admitted it:

This owner (name redacted) has undertaken repeated inspections of the records of the owners corporation. The representatives of the owners corporation consider that all available records of the owners corporation were made available to them during those inspections as a result of which if they do not have any records that they desires that is because those records are likely not available.

Equally importantly, what is the purpose of them pressing for the records to be produced to him?

In the circumstances, the representatives of the owners corporation do not consider that there is any merit in their request for those records to be provided to them and they are not prepared to agree to the request.

Can any reasonable person find any valid justification for the Tribunal to ignore this evidence?

Even worse, if a customer (Applicant) looses the case and the Respondent (strata manager and committee members) uses solicitor/lawyer for their defence, the customer then often pays legal costs for the other party.

So, what is the real option without high costs. Become a member of the committee or befriend somebody on the committee who can help…

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[Jimmy-T]

This would be why the NSW government now insists that all strata records are digitized and stored securely.

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[TrulEConcerned]

A key reason why records are “unavailable” is that there are no penalties imposed on SC members for:

1. Not storing documents securely; or for

2. “Misplacing” or “losing” documents over time when the SSM Act requires (at least) 7 years of paperwork be kept. Surely the onus is on the SC as they prepare agendas, host meetings and prepare minutes with or without the aid of a strata manager (who in my experience always say they are mere “agents” of the SC/OC and deny liability). It is reasonable to assume even if SC members past or present do not have hard copies of documents – a long bow I agree – surely they have electronic copies which they should be compelled to share.

I recall one scheme I was involved with that required me to go to NCAT in order to be allowed to inspect the books at the strata manager’s office.

When I got to the office I was given the books and was appalled that many pages were ripped out of the Minute book. Naturally when I confronted the agent and the SC, each pointed the finger at the other.

If memory serves me well, I even photographed the partially denuded minute book.

As to digital records – the problem with that is that a cunning committee member or members will not hold properly constituted meetings for as long as he, she or they can. That means that decisions of the SC and possibly OC will be informal and w/out an agenda or minutes and hence w/out a record.

 

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[TrulEConcerned]

Update – email 1 of 2

Thanks again fchat 56 for alerting me to the Body Corporate Services issue and Jimmy for your replies.

I have an update. Unfortunately it is involved, so I will post it in two parts.  The first part is far shorter.
Earlier I mentioned that newcomers to the strata scheme found the few records of the scheme in the strata manager’s (“SM”) possession to be shocking.

One strata committee (“SC”) member (Mr X) looking into another matter wants to access those records, but doesn’t want other SC members to access them. He doesn’t trust them.

Q1: Does Mr X have a legal basis for restricting others? What if the SC vote with him on this?

Mr X wants the OC to pay for his inspection of the records as the SM told him there is a charge, $34.10 for first hour (the regulated charge). I was under the impression that SC members can access at no charge, regardless of what a management contract states.

Q2: Am I correct? If so, what can the SC member do if the SM is immovable about this charge?

Thanks to all in advance for their replies.

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[TrulEConcerned]

Update – email 2 of 2

Sorry for the late posting, but I had hoped for replies to questions in “Update – email 1 of 2” as those replies would impact my questions in this “Update – email 2 of 2”.

Mr X raised the possibility of something that I think is way out of line and ask for Flatchatters’ views.

He says, “assuming the SM has few records and (current and former) SC members claim they have none, I will ask every owner in the building to pass to me any record they find in their possession”.

* He said that he’ll give owners say half a year to search for any documentation relating to the strata, from any time. Whatever is found and passed to him will be aggregated into a “library”. He will charge the OC for his work in aggregating;


Q3: Can he ask for payment? I think doing so breaches the recent reforms and s. 46 SSM Act.

* At our fortnightly tennis match I told him that I (an owner) have some papers but am not sure how relevant they are they are. They may be in one of 3 locations. Traveling to the storage sites, accessing them and sorting them out (so they make sense to Mr X) before handing them over, will take a time. Many hours. I don’t know how many. Maybe 6 hrs?


Q4: Can Mr X expect uninvolved folk like me to spend time and money searching in different places for historic paperwork? And do it for free? Or for payment we consider insufficient? Most of us work full time and have not the time, energy or inclination for this.

Q5: Can other members of the SC be expected to spend their time searching their files for OC documents, so Mr X will have a better picture of the scheme? They claim they doubt they have any records (odd given they’ve been on the SC for 5 years or so), but they will search, but not for free;

Here is the kicker.

Can Mr X insist that by a certain date (say 6 mths from now), he will draw a line. Whatever was found and handed in to him by that date will constitute the scheme’s library. Anything found by anyone after that date, even if it’s indisputably a true record, will not be considered in any decision making of the SC or OC.

He gave an example: “Mr Z, a senior citizen passes 25 records (all he could find) to Mr X within the 6-month window. They are a jumble of papers spanning 10 years that do not tell the full story about any matter. They may well add to understanding of an issue if read in tandem with documents unearthed by other owners and passed on to Mr X. Who knows”?

Mr X continues: “suppose the senior citizen passes away in a year. His daughter, two years from now, wants to renovate and suddenly finds historic OC documents backing up her view on a certain matter”. According to Mr X, “the document found by the daughter will be ignored by the SC and OC”.

Q6: Can the SC or OC choose to ignore that recently found (and indisputably genuine) document?

All perspectives are welcome.

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[Jimmy-T]

TrulEConcerned wrote:

Can Mr X insist that by a certain date (say 6 mths from now), he will draw a line. Whatever was found and handed in to him by that date will constitute the scheme’s library. Anything found by anyone after that date, even if it’s indisputably a true record, will not be considered in any decision making of the SC or OC.

A record is a record. Imagine how that cut-off would be greeted in a court of law?  All he can really do is ask people to hunt out their various bits and bobs and he should suggest a reward, not threaten an unenforceable undertaking not accept records that they have forgotten about and no longer care about anyway.

As for payment, if he is asking for payment as a committee member, that’s not acceptable.  If he is asking as an individual providing service to the scheme then he can’t participate in the relevant discussion.

Bad idea all round.

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[TrulEConcerned]

Jimmy thanks for the feedback. I was thinking along the same line, but wanted someone on the forum to come out and read my mind. I too thought, “what substance is someone smoking to imagine that NCAT or a court would refuse to acknowledge a record, whose authenticity is unchallenged by anyone,  just because one or two or even the majority of an SC voted to exclude those records not deposited with the SC by a certain date”.

I am also pleased that you view the many moving parts of Mr X’s suggestion, are, all things considered…one big bad idea.

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[nugalbags]

Hello,

I have been the Secretary of my OC for the past 15 years. I think your expectations of Committee members to keep records, let alone provide upon ransom request is wholly unrealistic. Being on the committee is an unpaid, often thankless position, held by a revolving door of owners with little experience in record keeping. You cannot compel anyone to spend their time sifting their email.

It is the Strata Managers responsibility to keep records. What has likely happened is the Strata Manager has changed, and the hard copy records were lost on the changeover from one strata manager to the next. I forced our Strata Manager to quit 12 years ago (long story). To recover the records I (alone) took half a day off work, drove across Sydney and spent an afternoon sifting through document boxes in the back of an office. If I had not done this, then all the records would have been lost. The outgoing (and now estranged) Strata Manager was certainly not going to spend hours finding and digitizing records. As Jimmy has said, its for reasons like this that compulsory retention of electronic records has been law over the last 5? years.

I would suggest that they need to personally go to the current (and previous if applicable) Strata Managers Office and obtain what they can themselves. All the best.

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[TrulEConcerned]

@nugalbags, thanks for the response. In the scheme involved, there have been several strata managers in a few years. And I agree that some records may have disappeared in the handover.

The problem however is that before the first SM was hired, one committee member ran the scheme mostly on his own (with 2 others who did very little) and it seems that he did not pass all the records to the first SM. This I know because I visited the offices of the first SM, soon after he was hired and most bank statements and some invoices were missing. While I have never been a fan of SM, I could not blame the first SM for the missing documents. I can only blame the trio on the SC who ran the scheme and chose either to keep or trash key records.

I actually visited the 2nd SM just before the handover to the 3rd SM.

All the files were in a large sac and I had access to them. The same missing papers listed above were still missing.

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[optusJo]

I am not in NSW but in Victoria.
I am in the situation where i was told i had built on common property with permission.

I eventually found the AGM minutes from  20 years ago where it did say a resolution had been passed.  The Management Company said they had no records as they were inolved with the building 20 years ago.

In the course of the prep for VCAT and a compulsory mediation I was told they were not relevant it was so long age and I should just let go  …, however the same company had been operating as the Management Company with about 6 name changes in the last 20 years.

 

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[Jimmy-T]

optusJo wrote:

he Management Company said they had no records as they were inolved with the building 20 years ago.

Is the word “not” missing here? As in “not involved”?

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[optusJo]

I just saw the message!
I am in Victoria and it is a Company Title.
The same company has been at the place since at least 1999 (i have a letter from the then Manager).  My minutes show there has been a series of Company name changes, but each time the minutes say that the change will not affect us.

However, the Memorandum of Articles and Association refer to keeping a Minute Book and a Resolution Book and this is to be kept by the Service Company.  I suppose that they then sublet this to the Scheme Management Company.  In any case – no records!

I knew my shoebox filing would come in useful one day.
Q.  How long should these Minute Books have been kept?  Is 7 years enough?

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[Jimmy-T]

optusJo wrote:

How long should these Minute Books have been kept?  Is 7 years enough?

I would think records should be maintained for the life of the building.  How else are you to know about discussions and decisions made ten years ago that still affect the management of the property today?

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[Jimmy-T]

Oops! How I think things should be and how they are differ greatly. Section 180 of the NSW Act says this:

(1)  An owners corporation must cause the following to be retained for 7 years—

(a)  any records, notices and orders required to be kept under this Division or Part 10 of the Strata Schemes Development Act 2015,

(b)  minutes of meetings required to be kept under Schedule 1 or Schedule 2,

(c)  its financial statements and accounting records,

(d)  copies of correspondence received and sent by the owners corporation,

(e)  notices of meetings of the owners corporation and its strata committee,

(f)  proxies delivered to the owners corporation,

(g)  voting papers relating to motions for resolutions by the owners corporation and to the election of officers or the establishment of a strata renewal committee (under Part 10 of the Strata Schemes Development Act 2015),

(h)  a copy of any signed strata managing agent agreement or building manager agreement entered into by the owners corporation,

(i)  records given to the owners corporation by the strata managing agent relating to the exercise of functions by the agent,

(j)  any other documents prescribed by the regulations for the purposes of this section.

Maximum penalty—5 penalty units.

(2)  The regulations may prescribe a different period for which any or all of the things referred to in subsection (1) are required to be retained.

 

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[optusJo]

I am lucky I kept the Minutes and that they refer to a resolution … the Memorandum of Associsation states that Resolutions have to be written into the Minute book.  But it does not make sense that AGM Minutes, which is when you are at the very least informed of what is going on,   are only kept for 7 years.

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[Author]

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