[alinka]

Thank you Jimmy for your valuable advise.
Do you mind to advise me further please?

The strata manager is already getting quotes from two strata lawyers. As he informed the OC, he will than forward the quotes to the newly elected EC, who should than decide, who to engage.

The problem is that at the AGM through the poll voting the pro-group blocked other owners to be on the EC. It means the pro-work group will decide.
As I mentioned before, they insist to have the legal advise before the mediation, which is already logged and was postponed from the 22.9. to a further date.
Who shall the opponents turn to, to ask that the pro-work group should pay for the legal advise and when shall we do it; after or before the legal advise is obtained? Do we need to inform the strata manager/EC secretary about our intention or do we need to go to the NCAT regarding this?

Also they forced at the AGM through the poll voting the EGM minutes to be altered to “change of the balustrades is not a repair (as they were claiming before) but a maintenance as it doesn’t meet the requirement of the current BCA”. Could this have any influence what kind of resolution is required when they are now talking about maintenance and not repair?

Thank you for your advise
Alinka

[alinka]

Thank you Whale. I will follow your advice.
Alinka

[alinka]

Whale, I just would like to let you know, that I asked the strata manager to minute that my husband was not allowed to speak at the AGM.
He is refusing, because he is saying it is not that important.
He changed his tune and is saying now that the OC should have decide on it. I wrote him, he never asked the OC to vote on it. He also said to me that the owner, who requested apologised to him after the AGM.
He promised me, next time he will let the OC decide on it and he is certain, they will allow it.
But he still does not want to minute it.
Was actually the AGM legal at all? My husband has good argumentation and some of the motions would probably be decided differently when he would be able to explain it to the owners. This was actually the main reason, why for the first time my husband was forbidden to talk.
Alinka

[alinka]

Thank you very much Whale for your answer and advice. I think that the strata manager and the particular owner just try to be unpleasant to my husband and me.  Alinka

[alinka]

Thank you all for your advises. I do appreciate it.
Alinka

[alinka]

Thank you for all your comments regarding the amendments and approval of the AGM minutes.

alinka

[alinka]

@Jimmyt53 said:
Under section 138 (2) of the Act, if an application is made to the committee to fulfill its duties and it fails to do so within two months (or refuses to do so) any “interested party” can make an application for an order at NCAT requiring them to do so.

We don’t have a problem with the secretary, but with our strata manager, who in my opinion should have postpone the meeting to the AGM, 3 month away, especially knowing it was not an emergency. The resolutions were dismissed, because it was not stated on the agenda that special resolutions are required.
Only who was profiting from this whole circus was the strata manager. After a disastrous meeting he deducted our admin fund with a substantial amount.
The EC and the secretary were left out of the situation completely.

In my opinion the proper way to handle the situation would be to advice the applicants to wait with their motions until the AGM ( 3 months away).
It was not an emergency, the reports clearly stated no faults identified. The two applicants only wanted to push their issues through to get new balustrades and the strata manager supported them in it, even stubbornly stating, standard resolutions are sufficient. Only 9 days before the EGM, the strata manager admitted that special resolutions are required, but he couldn’t change the agenda, because it was already sent out to the owners.

[alinka]

Thank you Whale. I fully understand what you mean. I do value and appreciate your advise. Kind regards. Alinka.

 

[alinka]

Once again thank you Whale.

Just to avoid any problems in the future regarding EGM, could I ask, if I understood you correctly. 

1. The EGM’s should be conducted only:

a. If it can’t wait until the EGM

b. If it is an emergency or major repair

2. In case, the EGM is conducted and is benefiting only one or few owners, they should bear the cost of the EGM. 

3. In real terms it is up to the strata secretary to decide, if an EGM  should be conducted, or if it can wait until the AGM. If the relevant provisions of the SCMA exists to my questions, would you be kind enough to let me know. I value and appreciate your answers.  Alinka

[alinka]

Thank you Whale

could you kindly let me know, if the applicants could decide the place, time and date of the venue and who will chair the meeting without consulting the OC? Could the applicants put the motion on the agenda that OC will pay for the EGM and all cost involved or should the strata manager dismiss the motion? Was it up to them or the strata manager to find out what kind of resolution was required?   Thank you. Alenka

[alinka]

@JimmyT said:
this is a shot across your Strata Manager’s bows.  You are telling them that you know the law.

If they go ahead with the meeting and the motions aren’t presented as special resolutions, and noted as such in the agenda, you could:

a) apply to the chairman at the meeting to have them struck off the agenda as being incompetent

b) before the meeting apply to NCAT for an interim order that they not be considered

c) if the meeting has gone ahead and the motions passed on a simple majority vote, apply to NCAT for an interim order to prevent the work going ahead.

I strongly feel that you are getting very close to the point (if you haven’t already passed it) where you need proper professional advice from a specialist strata lawyer. On that basis, I am closing this correspondence unless someone has something new to bring to the table.

Division 3:

35   Forms of motions

(2)  The notice [of a General meeting] must clearly indicate which motions require a special resolution for their passage and which motions require a unanimous resolution for their passage.

(3)  A motion must not be submitted at a general meeting unless notice of the motion has been given in accordance with this clause …

Thank you and hope, the problem will be resolved

[alinka]

Thank you very much again for your valuable advise.

Sorry for my ignorance, but the Devision 3, Section 35 mean, if the strata manager doesn’t change the motion to a special resolution that he will be accountable, if the OC money will be spend?  I don’t understand it fully and I am not quite sure, if I found the right act.

STRATA SCHEMES MANAGEMENT ACT 1996 – SECT 35

Information may be required relating to money received by the strata managing agent from the owners corporation

I am sorry to bother you again.

[alinka]

Thank you very much, I truly do appreciate it. 

I am very happy to be a member of the forum. Finally a place, where I can get clear and straight forward answers. Thank you

[alinka]

In response to the balustrade replacement, which reads that the opponents need without reasonable doubt to prove that it is an upgrade and not a repair, I asked my two motions to be put on the agenda (a. and b). The reply of the strata manager (see below) is, not he or the applicant, but the opponents need to prove it. Please advise 

a.That the Strata Manager …… without reasonable doubt supplies evidence and proof that the replacement/modification of the balustrades is a repair and not an upgrade, to rectify his believe that the voting on the motion requires standard and not special resolution.
Submitted by the Owner of unit …….

b) That the initiators of the motion 3.2 c) “Replacement of Balustrades” supply proof without reasonable doubt that the western balustrades of Units 5, 6, 7 & 8 are unsafe to justify the balustrades replacement.
Submitted by the Owner of Unit……

Answer by email to the owners from the strata manager

Going through these motions (3.2.a), the onus should not be on the Strata Manager to prove that it is a standard resolution but on the owner of Unit ….(me) to prove that it is a special resolution as when I added the qualification I had sought advice from several of my fellow strata managers who have all stated that this should be a standard resolution. 

[alinka]

Thank you for your advise, this is a big help for me.

regards

alinka

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