[dustyrusty]

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.

[dustyrusty]

Additional relevant section to consider:

22   Notice to be given to owners corporation of right to cast vote at meeting

 

[This section had been quoted at length but has been removed by the website editor for reasons given below]

If you want to read it, you’ll find it HERE

[dustyrusty]

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]

I feel you pain. Have you thought through Strategy in terms of what orders you will seek and reasons (with backing evidence) for your requests?

Beware, NCAT is currently over subscribed and you will be forced to mediate via Fair Trading which will take a month likely with little result.

Feel free to PM and we can compare tales from the trenches.

[dustyrusty]

For completeness here’s what I think are relevant sections and wonder how does one get into the state of no postal address on the roll as highlighted in red. For it to be listed explicit there must be some set of circumstances leading to it.

—

261 Address for service

An address for service given under this Act may be an Australian postal address, an email address or a facsimile number.

262 …

263 Service of documents by owners corporation and others

(1) Application of section This section applies to a notice or other document required or authorised under this Act or the by-laws to be given by the Secretary, the Tribunal, an owners corporation, the lessor of a leasehold strata scheme, the original owner, a strata committee, the secretary of an owners corporation or a strata managing agent and is subject to the other provisions of this Act.

(2) Service on occupier of lot A notice or other document may be given to the occupier of a lot:
   (a) by post at the address of the lot, or
   (b) by leaving it at the address of the lot with a person apparently of or above the age of 16 years.

(3) Service where address is included in strata roll If an address for the service of notices on a person is recorded in the strata roll or has been notified in a tenancy notice, a document may be given to the person:
  (a) in the case of a postal address, by post at that address, or
  (b) by sending it by electronic transmission to an address or location nominated (in correspondence or otherwise) by the person as an address or location to which correspondence can be sent, or
  (c) by leaving it at that address with a person apparently of or above the age of 16 years.

(4) Service on owner of lot A document may be given to the owner of a lot in accordance with subsection (3) or if no address for service is recorded on the strata roll:
  (a) personally, or
  (b) by post at the address of the lot, or
  (c) by leaving it on a part of the lot that is the owner’s place of residence or business (otherwise than on a part of the lot provided for the accommodation of a vehicle or as a storeroom), or
  (d) by leaving it in a place provided on the parcel for receiving mail posted to the lot, or
  (e) in any other manner authorised by the by-laws for the service of notices on owners.

(5) Service of notice to produce certain records and property Notice under section 182 may be given to a person:
  (a) personally or by post, or
  (b) by leaving it with a person apparently of or above the age of 16 years at the place of residence or place of business of the person who is to be given the notice.

(6) Service on person where building included in part strata parcel A document may be given to a person in whom is vested an estate in fee simple, or, in the case of a leasehold strata scheme, a leasehold estate registered under the Real Property Act 1900, in part of a building or its site, another part of which is included in a part strata parcel, in any manner provided by section 170 of the Conveyancing Act 1919.

264 Service of documents

(1) A document that is authorised or required by this Act or the regulations to be given to any person (other than as required by section 262 or 263) may be given by:
  (a) in the case of an individual:
    (i) delivering it to the person personally, or
    (ii) sending it by post to the address specified by the person for the giving of documents or, if no such address is specified, the residential or business address of the person last known to the person giving the document, or
    (iii) sending it by electronic transmission to an address or location nominated (in correspondence or otherwise) by the person as an address or location to which correspondence can be sent, or.
  (b) in the case of a body corporate:
    (i) leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or
    (ii) sending it by electronic transmission to an address or location nominated (in correspondence or otherwise)  by the body corporate as an address or location to which correspondence can be sent.

(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be given to a person in any other manner.

[dustyrusty]

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.

[dustyrusty]

How do you think these questions might be considered for committee member who practices property law in their day job?

[dustyrusty]

I’m in process learning what rights I have, what orders I can make and was hoping to pay a paralegal and ask others advice before hiring representation.

Hence asking on this forum for answers to specific questions…

[Author]

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