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It has been argued, not at NCAT or in Court, that in relation to the following that names and explanations are not something the Act compels he secretary to include on an agenda.
4 Inclusion of matters on agenda
(1) Any owner, or any person entitled to vote at a general meeting of an owners
corporation, may require a motion to be included in the agenda of the next general
meeting of the owners corporation.
(2) The requirement is to be made by written notice given to the secretary of the owners corporation that—(a) sets out the required motion, and
(b) states the name of the person making the requirement, and
(c) includes an explanation of the motion of not more than 300 words in length.
(3) The secretary must give effect to the requirement.
The required motion of (1) and 2(a) is what the secretary is compelled to include; no question there.
That the requirement includes the name of the proposer and an explanation is distinct from the required motion. That should be noted.
This has been taken by some briefs to mean they are required as part of the requisition (as it used to be called) but they are not part of the required motion.
Some argue the name is for the purpose of ensuring the proposer is entitled to request the motion and that the explanation is for the Chair’s benefit or their copy of the agenda if questions are asked (say the proposer is not present).What I will tell you for free is that putting the name on a motion is a hideously poor thing to do as I have for over 20 years watched motions be “determined” by whose name is on them. Personally I feel that if the name is required on the agenda then it is counter productive. The meeting does not need to know who proposed a motion; all they need to know is it comes from an entitled source and then consider its merits.
Bonus free stuff; NCAT has never considered it fatal to a motions outcome that the name or explanation was not included.If you want piece of mind then you need a Tribunal or Court decision as what we think is rather meaningless.
What they think is what matters.I did just that 18 mths ago and the result was the strata manager quit running our scheme.
And most likely did so to vex the OC.
I have traveled that PSA Act and Regs path. I used to follow the letter of that Act and Reg until one day someone from FTs compliance office rang me and told me to stop because of how resource heavy the process was. I was given a direct number to an officer. Nowdays we have the online form.What does FT do – they typically try to look the other way, firstly they try what is called re-education which is someone from FT explains where the agent is going wrong, as things ramp up the agent might get a warning or two, FT might come to the office and inspect things and if things continue the agent might end up being asked to show cause.
A very long and protracted process where until the very end there is no real consequence for the agent.
You think agents don’t know all this?
Ask FT how many licences they have revoked and what for. Enjoy the laugh.I know of agents who have dropped OC’s for less. For some agents if the client isn’t easy money then the client can take it elsewhere.
I would wager the agent did not drop you because FT scared them.Again, you seem to think the rest of us are plebs because it IS for you to say what this means. Or am I misinterpreting that too? I would go to the barricades on this one as I did recently with Netstrata and, to great and vociferous length with their boss and now departed president of SCA Stephen Brell. Upshot, my strata scheme got the strata roll with the email addresses of the owners attached. Even plebs can prevail, just by following what the law says and not by what it might mean if you turn the words around a bit and take out a couple here and there.
Yes you are misinterpreting.
It is not that people don’t misinterpret it is more a question of how often do they do it.
You might note i say “what does it mean is not for plebs to say unless we are quoting the Courts”
What part of “we” am i not a part of?
I would have used “they” if i was seeking to exclude myself.
You seem to exclude me from the “we”. Your action, not mine.
I do not say what it means, I offered a competing, and better, interpretation that is consistent with the information at hand.Upshot is the issue wasn’t about whether or not you can have the “strata roll” with emails from Netstrata..
The issue was is an owner legally required to give an email if they have one.I have shown you why that if one meets 178 1(b) then (c) does not apply.
I have shown you the State’s own website does not say you have to give it if you have it, which i believe it would if there was the requirement you press.
You have not successfully presented an argument to support the idea one has to give an email.
Yes you misinterpret and yes you did substitute.Here is what the State says:
I notice the State are not explicit that an email must be given.
I feel it is also implied your address doesn’t really cut it as enough contact details (not digital enough maybe).
These days your contact details are even being extended, by some lawyers, to include “such as a phone number”.
I don’t see legislated compulsion to give an email (if you have one) in the States rhetoric.Strata roll
What is a strata roll?
A strata roll is a list of the owners in a strata scheme. It must be kept for the whole time the scheme is running.
It must include:
- the strata plan number and address of the scheme
- each owner’s name, address and contact details (such as an email address)
- how each owner owns their lot (for example, whether owned outright or through mortgage)
- the date the owner gained possession of the lot
- if the owner has an agent, the agent’s name, address and contact details
- if the owner has a tenant, the tenant’s name, contact details and date the tenancy started
- the name and address of the original building owner (usually the developer)
- the name and address of the strata manager (if there is one)
- the total number of unit entitlements for the scheme as a whole, and the unit entitlement assigned to each property within the scheme
- insurance details
- all by-laws.
OK, for the umpteenth time, here is what the law says
I like this “here is what the law says”
That is what it says but what does it mean?I take the reader to the SSM Act and the 250+ uses of the word “must”.
There would be the best part of 4 or 5 meanings for must.
So many different meanings and some of the “must” reduce to should because there is nothing “must” about them.
I take the reader to the following case – 2 Elizabeth Bay Road Pty Ltd v The Owners – Strata Plan No 73943 [2014] NSWCA 409
The break down at paragraph 35 of what “must not” means
35 These “must not” provisions are of three types.Yes that is what the law says but what does it mean is not for plebs to say unless we are quoting the Courts.
178
(a) …
(b) an address for service of notices,
(c) an Australian postal address, and an email address if the holder has one, if not provided as the address for service,You will notice the “Australian … address” and the “if not” in (c).
If (b) is an Australian address then (c) doesn’t matter.
Take someone overseas and they give their OS address for (b), then they need to fulfill (c).
Meet (b) and then (c) doesn’t matter.I will just rearrange (c) to make the above more visible.
(c) an Australian postal address if not provided as the address for service, and an email address if the holder has one.If your address for service is not an Australian address then the Parliament would like the owner to provide an Aussie address and throw in an email if you have one.
If the Parliament, blanket, wanted an email address, if the owner has one, then the requirement would appear in (b), not as an extra in (c) just for those who haven’t given an Australian address for service.
You don’t need to apologies or retract because at the end of the day all we now have is competing interpretations.
I actually do not see why (c) means an owners has to give an email address unless they have failed (b).The point is that the law says owners who have email addresses should supply them to the strata roll
And also
“The owners corporation must maintain a strata roll (Section 178) and it must have the email addresses of owners in it.”I feel the average Joe comes away from that thinking i need to give them my email address if i have one.
It is just not true that anyone “should” and “must”.
What type of must is that must?Giving ones email is an option in certain circumstances.
Sure it makes things easier for the management to be digital but let’s not just give the vibe that if you have an email then you need to hand it over.
This (CTTT below) is why some people prefer to give a physical address and get hard copies from their OC.
My latest copy of my OC’s register of names and addresses has lots of emails and it now includes phone numbers as well, including my own which i do not remember giving as information to be put on the strata roll.“Secondly, even if an address for service of notice is “information … about an individual”, part of the primary purpose of the collection of lot owners’ addresses and their inclusion on the strata roll is so they can be contacted by other lot owners and the Executive Committee of the Owners Corporation. ”
Legge v Network Strata Services Pty Ltd (Strata and Community Schemes) [2013] NSWCTTT 45 (8 January 2013)
FT said that if a SC member comes across as merely wanting to embark on a fishing expedition, without making clear the purpose is to be able to tackle a current problem facing the OC, then often a strata mgr will indeed charge and get away with doing so.
Where does it say one needs to give a reason to see the records?
At times FT comes across as protection for rogue agents.
The old strata roll access issue.
It never goes away; why?
Because “the State” is the problem.The government sold this monopoly to PEXA, with the promise of smother and cheaper registration of land dealings.
And you believed them? Bahahahaha.
Anything Government is more likely lie that truth. We all know it and we “all” re-elect them.
We “all” have ourselves to blame when this type of thing happens.I like this piece for some of its no holds barred shaming of the State for its dysfunctional system. Specifically I like the criticism of the failure of the State to take responsibility for the alleged professional the State licence.
The odd person has had a licence revoked only to get a fresh one a few years later and continue on there merry way fleecing owners corporations for a not yet competent service.
Strata Managers; so often in business for the money and too often not fit for purpose.
Anyone with some strata savvy or who has been around long enough knows it is true. Liberal and Labor governments have come and gone yet here we are with the perennial problem both created and neither can (will) fix.
You get what you vote for. The fix lies in moving away from the two party system hence we are still talking about this perennial problem and will die still talking about it because it is not going to go away under a two party system.The issues with the resolution mechanism are I feel best resolved by making the system inquisitorial rather than adversary. David can not battle Goliath in such an environment and I for one am sick to death of seeing costs order because some inept Member got something wrong and one party had to escalate the matter to resolve the mistake thus in too many cases leaving one party picking up the tab for the States initial failure. The State needs to take responsibility for its mistakes and that happens in an inquisitorial system, it doesn’t happen in an adversarial one.
Sick of seeing legal representation at NCAT as well. It should be only in the most extra ordinary cases that legal representation is allowed. The objects of NCAT include dealing with matters with as little formality as possible. I think NCAT hopelessly fail that objective; CAT Act 3(d) – any claim that NCAT is meeting that criteria is pure fantasy.Standardize the terminology. The labeling of the committee, oh please. There are over 250 uses of the word “must” in the Act and there is about half a dozen meanings depending on which must one is looking at. It is an absolute dogs breakfast created by the higher Courts in this State and it makes the ‘Strata Act’ incomprehensible to all but those who like to make these fun little distinctions between this must, that must and the other must. It is garbage because most the musts in the Act have been reduced to meaning should because there is no consequence for failing to must. Cognate words is a section in the Interpretation Act which distills down to saying that a word has the same meaning if used on many occasions. Until must becomes a cognate term the Act is an incomprehensible wish list For 2024 I would like to see legislation that actually means what it says.
Take s 238 for example. No strata committee member has ever been removed (no reported case) and so am I supposed to believe the problems that led to the section just magically went away or is it more the case the alleged solution was just window dressing and there was no real product.
Smart money is that David Chandler will leave the job and the bread and butter issues in strata will still be there.
Sure we can expect to see some Rob Sitch Utopin style announcements but he will not fix strata because it is broken at a different level to what he will be looking at. Strata Commissioner – great pay packet, nice announcement for the Government and all that but I will gladly come back when he is gone and remind everyone it was just a shallow facade.I live in what is clearly a dysfunctional strata plan (with an agent) and the State do not seem to care.
In 2024 I am so looking forward to the new provision that empowers the Commissioner of FT to request NCAT order management.
Looking forward to it for two reasons. One is the hope it is actually useful to solve the issues in my SP, the other is I need the laugh that comes from it being another s 238 facade. I will get one of those outcomes so something to look forward to.I like it when the keymaster takes the SHAME stick to the system.
Don’t agree with a lot of the keymaster solutions but still when it comes to the use of the shame stick there should be much more of it.I suggest you do as I did, when I had an issue with a strata mgr doing the bidding of the committee in violation of his duties under the act under which he is licensed: the Property & Stock Agents Act. Make a formal online complaint to Fair Trading about the agent and pony up evidence how you believe he breached the Property & Stock Agents Act. You can do this as an owner. You don’t need others to join you nor do you need a general meeting to get this ball rolling. If FT agree that your complaint is reasonable, they will contact the agent and if needed, investigate. One outcome is that their investigation will prove your allegation(s) and if so, FT will tell him that they found him to be “non compliant” with the relevant legislation. The fly in this ointment is that FT does not have to tell you, the complainant, what sanctions/penalties/directives/instructions they issued/levied on him. If you’re lucky, you’ll have the outcome I had: (1) FT investigated; (2) FT informed the agent that in their view his behaviour was “not compliant”; (3) FT told me that they found the agent “non compliant”; and (4) quick as a wink the strata manager resigned and we had to find a new manager.
It is beautiful isn’t it?
You didn’t mention FT might re-educate the recalcitrant agent.
If one reads the General Rules for Conduct (for all Agents) in the PSA Regulations then one might find themselves asking what is the point of the rules if there is no real consequence, they might also find themselves asking how did this person qualify for this licence … so many questions.I like the objective quality of your post.
So where does that leave unbudgetted items?
It leaves them subject to ss 73 and 74 which say an OC can pay money from the Admin fund or CW fund for the following … and it lists the criteria.
Unbudgeted things do not meet with the criteria of what can be spent on so in theory there should be no spending on them so the 10% is not an issue.
Unbudgeted things somewhat enter the world of the special levythis is for NSW. If you’re not an owner or hold a proxy, can you attend an AGM?
We did this one on a podcast by a well known strata lawyer who the Keymaster has been a guest for occasionally.
The lawyer felt the AGM notice was the invitation to attend and that those without an invitation or proxy from an invited person was not allowed. It is an interesting analogy but it has its limitations.
Best offering i had during those discussions was that there is a case from the SA Supreme Court that distills down to saying strata meetings are private which leads to a viable position that they are for owners and their proxies, the rest of the world is not entitled to attend and can be asked to leave if they do attend.
That gets interesting if a couple ‘own’ a unit but only one is on the strata roll and that person attends, their partner is not welcome? Sounds harsh but let’s not let fuzzy warm feelings overcook our model.
Additionally some weight could be given to owners being entitled to attend a SC meeting in silence. Seems attendance for that type of OC meeting is limited to a specific class of person. It would be strange if the whole world could just waltz into a general meeting but only owner could go to a SC meeting. Where is the consistency in policy in that?Can a non owner or non proxy holder attend the AGM; that is a no form me and i back that no with SA Supreme Court authority.
So what’s stopping you from communicating with other owners? You are entitled to see the addresses, phone numbers and email addresses of other owners in the block. Privacy (the usual excuse) is not applicable here.
Not quite. You are entitled to some of that.
Address for service of documents you are entitled to.
If it is an email address then it depends on if the owner has notified the OC the email is for service of documents at which point it becomes fair game.
Phone number – do not know where that idea is coming from.