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“This prosecution shows that the regulator is now on the beat – at least in NSW. ”
You don’t make a model based on one data point.
If that fails, you put the same motion on the agenda of your next AGM. If the secretary and or chair baulks at that, there are mechanisms available for removing them from the committee either by a majority vote of owners or via the Tribunal.
LOL to the max at the idea that such a thing would be grounds for a s 238 order.
For those who haven’t been keeping up. In the real world NCAT view s 238 like they do s 237 so you need some serious dysfunction before the Tribunal would intervene.Witch Hunt.
“The most obvious option is to present a motion to the committee itself, saying that all votes, including who voted for what, should be notified to the committee members.”I didn’t see that coming so not overly obvious.
If the secretary is part of the problem then do realize the secretary has no obligation to include such a motion on the agenda. Also take onboard that as much as the SC has a impressive degree of flexibility in how it handles its affairs how does one enforce this “policy” should the motion find its way onto an agenda and get majority approval?I love these people who call breach of privacy.
There is no common law right to privacy so if you are going to call breach of privacy then rather than possibly looking like the fool at least cite the section of legislation that you allege gives you some right and explain how you believe the events have breached that right.Use FT mediation to seek to have the decision overturned.
That is either poorly worded or shows a poor understanding of what FT do.A point JT overlooks is the agent would be the delegate secretary and so your situation seems to be you are now writing to the delegate and not the elected secretary.
You could ask the delegate secretary why you are now getting “special treatment” if other owners can write to the elected secretary and you can’t.
If it was a SC decision then there should be something on an agenda and something in minutes somewhere.
Just on responding to correspondence:
The Act says in s 43 it is a function of the secretary to
(e) to answer communications addressed to the owners corporation,There is case law that says the functions of the office bearers are taken to be the functions of the OC (2EBR) so it is a function of the OC to answer correspondence. Whether this is the elected or delegated secretary doesn’t really matter as there is case law that implies the delegated secretary is taken to be the secretary (Tilburn).
Let it go through the agent, who cares who answers as long as you get an answer.
A lot of owners never get an answer.
Welcome to strata.This item on the agenda seeks agreement that each lot owner should pay $275 for this upgrade.
A good Chair might call that motion out of order for the very reasons expressed by JT above, i.e. the cost for this (s 108) matter should be based on unit entitlement (UE).
You might like to, for fun, ask the Chair to make a ruling on the validity of this motion as it appears to be contrary to the Act in that the cost of such an improvement to the common property should be based on UE and the motion seeks to do something else.
Nothing like putting the agent, or even more funny a volunteer, in the hot seat by asking for a such a ruling.The wording of the motion would be useful to see.
Does the motion actually say that by SR the OC approve of the addition to / alteration of the common property.Here is where s 108 gets a little entertaining as it is for ” the purpose of improving or enhancing the common property.”
Not really doing that are we, we are more realistically improving the amenity of the lots by making this change to the commons. The Act doesn’t really say much about changing the commons for the purpose of improving the amenity of the lot outside of what s 110 allows.
Still this seems to be a UE based cost.
Shared living – has its ups and downshttps://www.caselaw.nsw.gov.au/decision/19149b97b052c883be9dc6c0
Fanti v Hargraves [2024] NSWCATCD 15
Landlord claimed bulb replacement in that case.
Landlord got compensated $5.83 for a lightbulb.
(And also 3 heat lamp bulb for$31.19)Bulbs were fair game in this case.
To have an electrician come out and do it is just burning the tenant.In NSW: “In this Act, a resolution of an owners corporation is a “special resolution” if–it is passed at a properly convened general meeting, and, of the value of votes cast, not more than 25% are against the resolution…”
Commentary on SR voting in NSW by a strata lawyer commenting on another strata lawyers’ view; 1996 Act.
The view expressed by Alex (Ilkin) is the one I have been accustomed to.
It is explained in terms of 18(2), on the basis that 18(2)(a) indicates that the question of whether the motion passes is determined on votes cast only, whereas 18(2)(b) and 18(3) are directed at how the value of votes is determined.
If you then look to the definition of “special resolution” in the dictionary, the reference to clause 18(2) and 18(3) is in relation to determining the 25% value of votes that are cast (and not determining whether the motion is passed or not).
Essentially Alex’s view treats the words “votes” in the phrase “not more than 25 percent … of votes is cast” as meaning votes that could be cast, whereas CCH is treating “votes” to mean votes that were in fact cast.
So on that view the motion passes under 18(2)(a) on votes actually cast for and against, and the 25% is determined on unit entitlements (or reduced developer entitlements) under 18(2)(b) and 18(3) of “votes” within the meaning of the definition of “special resolution” in the Dictionary.
There is a certain symmetry in your view, which certainly adds to its appeal.
However, as the matter is ambiguous, I am convinced by the notion that the legislature intended the 25% to be effectively a “veto” power, or a kind of reversal of the “onus”. If people are present and abstain, on that view they are electing not to exercise the veto power. The calculation of the 25% according to votes that could be cast is consistent with this interpretation.—————
And for what it is worth the NSW Parliament were asked to consider as a part of the 2015 reforms changing the definition to that found in the Corporations Act.(b) the resolution must be passed by at least 75% of the votes cast by members who are entitled to vote on the resolution
Funny part is I can find a Supreme Court case, strata case, where the Justice uses this definition when referring to a special resolution.
What can be done if you find out, and can prove, that a SC member is lying at a meeting?
We’ve got SC members who lie through their teeth as if it is a part of their s 37 duty.
“Due care, diligence and whatever lies are necessary to promote their agenda …”Same people are responsible for the “code of conduct” for SC meetings which says a SC member should not mislead the committee.
Lying here is about who is saying what, it isn’t a lie if one of your own faction is saying it and loyalty to the faction means you must subscribe to the lie.It isn’t just lying to the SC. These people are happy to entrench lies in minutes and when our highly capable friends (LOL) at NCAT were asked to make a s 238 order and remove the people from the SC for lying and misleading owners via SC minutes it meet with a big fat NO. That is not serious dysfunction.
Underline that part – lying is not serious dysfunction.Similar outcome when the OC was found to be lying to NCAT in submission – nothing came of it.
I will give an example of a more recent lie.
We have an owner who played the death threats card.
Claimed to the AGM they had received death threats.
When asked from who all you heard were crickets.
When asked if it was reported to the police all you heard were crickets.It was an absolute lie but it attracted some sympathy from those who subscribed to the liars factional agenda.
Lies – not much you can do about them except enjoy the division they cause.
It’s surprising how the threat of mediation will suddenly focus the committee that one is serious.
Tom Cruise as Maverick in Top Gun:
Don’t think, just do.Just cart them off to mediation, don’t threaten, do it.
It is informal, there is no commitment beyond it, there is no cost and once you have been a few times you will be very relaxed about it and happy to do it every-time the rogues put on another performance as bad actors.And if your OC is silly enough to get, for mediation, legal advice or send the agent as their rep then that is their choice, not yours. So any vilification that you are costing the OC is easily dispelled as playing the man and not the ball.
People might want to check with the Supreme Court about owners “must” get a notice.
Most the musts in the Act are not an imperative. They are more a should than a must.- Similar reasoning is in my view applicable to the “must” provisions of clause 6 of Schedule 3. This reasoning supports the conclusion that the provisions regulate the exercise of powers by the EC and that compliance with them is not a necessary condition for the existence of power on the part of the EC.
The Owners Strata Plan No 57164 v Yau [2016] NSWSC 1056
Sch 3 cl 6 is from the 1996 Act but it is pretty much the same as the current version SC meeting notice provision, i.e. Sch 2 cl 4 (SSM Act 2015)
Bottom line is the Supreme Court says the existence of power (to make a decision) still exists even if you don’t get a notice.
I don’t make the rules I just mock those who make a mockery of them.
Good one Supreme Court.
Justice Rowan Darke has since retired.
I for one will not miss him with decisions like that.Isn’t that amazing! we were the first in the world. it almost makes it a joy to be part of such a scheme.
Did you not read the posts above; we were not first.
There are a number of others who were doing this sort of thing before we stepped up.
Again; may i suggest a quick read of pages 9 and 10 of Strata Title Property Rights by Prof Cathy Sherry.Myth busted.
Section 136 (2) 2015 Act.
“A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.”
The zoning would be made under another law (not Strata) and so the by-law would be inconsistent with that and likely find itself in difficulty if challenged.
Strata by-laws are pretty much the lowest in law hierarchy.So disturbing what NCAT reduced s 238 to.
So disturbing the way they treat s 237.
One more time, these are corrective tools.They are not draconian measures or things that need to be used ONLY in the the clearest of near criminal cases.
If a strata plans “democracy”, which NCAT thinks is so important as to tolerate more non compliance than should be tolerated, is such that it can’t address correcting non-compliance, and NCAT will not touch it, then we breed the dysfunction that is a somewhat ubiquitous problem across strata in NSW.
If the level of non compliance in strata was acceptable in other areas of society it would be a body count that nobody was addressing.
NCAT is implicit in the issues in strata by being to soft and finding “rubbish” excuses to not treat the legislation as it was intended.
No one has ever been removed in a reported case yet we had the reform to get this s 238 provision.
You want to tell me the problems that drove the reform magically disappeared or is it more the case that what the Parliament intended and what NCAT delivers are divergent?
The data supports a conclusion of divergence.can the OC ask the owners to return it to common property and remove the fence and outdoor furniture?
Court of Appeal says maintenance requires the owners corporation to restore to its original condition any common property which has been altered, replaced or destroyed (without proper authority): Krimbogiannis.
Not only can the OC ask it can do if need be.
There is a duty the owners corporation owes to remove the item and restore the common property to its original condition.Is my Strata Committee able to commit significant body corporate funds not included in an annual budget and not approved by an AGM or EGM for a major project which, itself, hasn’t been put to a vote of the body corporate?
Section 73
Administration Fund (and there is an equivalent for the Capital Works fund (s 74)(4) Amounts payable from fund
An owners corporation may pay money from its administrative fund only for the following purposes—(a) payments of the kind for which estimates have been made under section 79 (1),
(b) payments made in accordance with this Division on a distribution of a surplus in the fund,
(c) payments to a member of the strata committee of the owners corporation in accordance with this Act,
(d) other payments in connection with exercising its functions under this Act or the by-laws, or the Strata Schemes Development Act 2015, except payments that are permitted to be made from the capital works fund,
(e) any monetary penalty payable by the owners corporation under this Act,
(f) the transfer of money to the capital works fund or to pay expenditure that should have been paid from the capital works fund.
To answer your question; most likely no.they can’t
The simplest way to look at spending is – No budget, no spend (but there are some exceptions to that general rule).A modest 18-apartment block in Sydney’s inner west was the very first strata scheme in the world but it sparked a global revolution in the way we live and own our homes, writes Friend of Flat Chat, Tony Cordato
I think you will find there are those who appreciate Australia was not first.
May i suggest a quick read of pages 9 and 10 of Strata Title Property Rights by Prof Cathy Sherry.Wohnungsiegentumsgesetz 1951
https://www.gesetze-im-internet.de/englisch_woeigg/englisch_woeigg.html
(The German Condo Act as some call it)