[The Hood]

It might not capture everyone but email is fine.
Any owner can do it.
Emails are an address for service if the OC has been notified of an email for that purpose.

“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)

Just want to say if you didn’t have approval to put up noticeboards in the lifts that is naughty.

[The Hood]

First comment I would make is that I do not believe the agent can place motions on the agenda. In The Owners Strata Plan no 63731 v The Bunker Pty Ltd [2021] NSWCATAP 119 the Deputy Presidents concludes that if the agent did do so and it passed then that is OK so it appears pulling the motion up before it goes that far is key. The Act is clear at Sch 1 cl 4 on who can submit a motion and the ‘no legal character’ SC doesn’t meet the criteria and the agent doesn’t as well unless the agent is an owner or entitled to vote.
Amanda Farmer, who the Flatchat Keymaster appears with sometimes, does a pod cast on this topic and concludes neither the agent or SC should be including motions.
It is a well known legal principle that when creating a class of “who can” it is often to the exclusion of all other classes; “expressio unius est exclusio alterius”.
I think Bunker is a poor decision as there is no authority in the Act for an SC or agent to include a motion regardless of it it carries names and an explanation.

The wording of the appointment motion is like a lot of agreements where the agent is delegated the functions of the three office bearers and the strata committee. You motion is worded a little different but has the same effect.
If you have a hands on SC then you probably do not want to hand over the functions of the SC. If your agent like to take charge then you probably do not want to hand over the functions of the SC.
Does you agent understand he is the delegate and that the elected SC members and SC still hold power and that his delegations are not approval to run the show?

This appointment motion can wait for the 2024 AGM even if the agreement ends before then as the SC can authorise extensions of the current agreement up to the next AGM if an agreement runs out mid year.

The explanatory note is a little thin on explanation.
Perhaps an interim order, a very good suggestion, should be to restrain the OC from relying on the outcome of the appointment motion until after the substantive application is resolve and that should a s 237 appointment be made then any resolution of the appointment motion is to be of no effect.

No need to bring the whole AGM down.

[The Hood]

Reena Van Aalst of Strata Central
A regular on Amanda Farmer’s podcasts and possibly the best i have heard speak.

 

[The Hood]

Jimmy-T wrote:

I might add a few more decimal points to that – I don’t want Macquarie coming after us saying we claimed one in a thousand of their direct debit transactions were dodgy.

I was told by someone on the weekend that NSW is #2 in the world (behind California) per capita for civil suits.
Even it that is not right but it is close then that is a very poor statistic for NSW.

A few zeros might be in-order.

[The Hood]

Jimmy-T wrote:

When the changes to strata laws currently chugging through the NSW Parliament are enacted, a simple majority of owners at a general meeting can expel members who may not rejoin the committee for another year.

Indeed. I was a part of the chorus seeking that reform. It seems a more proportional arrangement.
Such a provision sets up an interesting situation.
Say an OC declines to pass the motion to dismiss a rogue.
Then a person entitled to bring an application may have a better time of it arguing it was an unreasonable decision of the OC rather than the pole vaulting high bar that is s 238.
Something to think about.

Still, that reform does not help when the rogues have the numbers.
While i am on proportionality – consider that a surplus in budgets is created by an ordinary resolution but it requires a unanimous resolution to distribute it back to the owner.
I think like for like is fair enough.

[The Hood]

This is section 108(2)
Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.

It too is a pass a motion first section but as readers of this forum would know the failure to first pass the motion can mean nothing. The temporal component of such sections mean nothing anymore.

Is there a case where the Tribunal has dismissed a matter because there was no resolution first passed?

The issue is not whether the NTC is valid the issue was the SC did not follow the Act, a trigger for s 238, and yet the failure meant nothing. Such a failure is not dysfunction; it is just non compliance even though the section triggers on a “failed to comply with this Act”

Indeed the threshold is set high. It is the same as s 237 and requires serious dysfunction which is far removed from “failed to comply with the Act”.
Sometimes I wonder if NCAT members can read or if they just make it up as they go to suit themselves.

Some recent case law on s 238
93. In any event, the matters that are to be considered under s 238 of the SSMA are the matters set out in s 238 (2), being:

Failure to comply with the Act, the Regulations or the By-laws; or

Failure to exercise due care and skill, or engaging in serious and wilful misconduct.

94.  Further, even if any of the matters set out in s 238 (2) are established, the applicant must additionally satisfy the Tribunal that the matters are of sufficient magnitude to justify exercising its discretion in favour of removing the strata committee member from office.
Linney v The Owners – Strata Plan No. 11669 [2021] NSWCATCD 123

AND

23. None of the allegations, even if proven, would support a finding that Mr **** has failed to exercise due care and diligence or engaged in serious misconduct whilst holding office.
Laws v The Owners – Strata Plan 97230 [2022] NSWCATCD 131

“Sufficient magnitude” and  “serious misconduct”.
As far as I recall the section was introduced to deal with people who can’t follow the Act.

[The Hood]

Jimmy-T wrote:

If the item isn’t on the agenda, it shouldn’t be discussed.

Better expressed that “if the item isn’t on the agenda then no decisions should be made about it”.
It is fine to discuss it, just don’t go making decisions.

“Importantly, the committee is bound by this agenda and not able to vote on a matter unless it is specifically listed. This requirement applies regardless of whether a matter is discussed in ‘general business’ or at any other point in the meeting. It would generally be the responsibility of the chairperson to declare a motion invalid if proper notice has not been provided.”
Rod Stowe (Fair Trading Commissioner Ref: FTMIN14/1685)

The same would apply to a general meeting.

Although it is highly unlikely that the lack of an agenda item denies capacity to make a decision (Sher Global Enterprises Pty Ltd v Owners – Strata Plan 31758 [2018] NSWSC 1057)

[The Hood]

Stevenp wrote:

…. in the public AGM meeting ….. so it’s not my breach of privacy, but theirs……. I have been told that Strata have found it possible to Exclude someone else permanently from the AGM ….

Strata meetings are private meetings. (ALLIANCE CRATON EXPLORER PTY LTD v QUASAR RESOURCES LTD [2010] SASC 266 (27 August 2010))

There is no common law right to privacy so i would be interested in what breach of privacy and what piece of legislation gives that right.

I would be asking by what authority the exclusions are occurring. There is a right to attend meetings both committee and general meetings.

“Strata” is who, the OC, the agent, someone else?

[The Hood]

Jimmy-T wrote:

A similar regulation is in the pipeline for NSW blocks of over 100 units.

I would expect you would have some appreciation of just how few large SPs do not already have a manager already.
There is a paper somewhere by Fair Trading from many years ago that says there are very few, it might even have used the term ‘handful’. I have it somewhere in the files.
It seems a very poor prioritization of issues and resources if the pipeline has this in it, but it does create the appearance of doing something.
So many bigger fish to fry.

[The Hood]

Ian wrote:

From day one it was obvious to me that I was surrounded by owner/residents who did not have a clue nor wanted to know more than the basics of how a strata plan is run and governed!

That is good because where i come from it is a case of owner/residents who do not have a clue nor want to know.

People in general face two problems with strata; they don’t have the time to learn it and for many they don’t have the skill set to understand it.

The overseeing authority, currently branded NCAT, have the delusional view:
“The legislation has always envisaged that generally, strata schemes would be managed by ordinary lot owners for their own benefit.”
J Bordon: Nulama Village P/L v Owners Strata Plan 61788 (Strata & Community Schemes) [2006] NSWCTTT 550 (25 September 2006)

Ordinary people with no idea running the show is what the plan was and it has been well executed because that is where we often are at with strata living.

[The Hood]

Indeed it is was on Flatchat i found that analogy and i did enjoy it at the time.
10 years on and it is (sadly) still spot on.

Another favorite was this one by Jimmy

Where does the CTTT get these people?
All over NSW, villages are missing their idiots.
http://www.flat-chat.com.au/2008/06/28/c-triple-t-twits/

I even had it put on a t-shirt and some one else bought one from the site it was on, to wear to a hearing they said.

[The Hood]

Some cases that make the chocolate wheel of representation even more chocolaty

24. As noted, the Appeal Panel refused the appellant’s application that it be legally represented. In our opinion there was no reason why leave ought to have been granted. Section 45 of the Act, set out above, starts from the position that a party is not entitled to be represented at a Tribunal hearing. In order for leave to be granted, there needs to be a proper reason for that prima facie position to be departed from.
Gearbox Solutions Pty Ltd v Bougoukas [2014] NSWCATAP 105

And then we see stuff like this where Member Rosser says you get no costs because you could have self represented and opted not to.

“… the operator opted to be represented by a lawyer. It had no obligation to do so. The tasks involved in providing evidence, and making submissions at the hearing could have been undertaken by an employee or officer of the operator. The residents should not be obliged to pay an expense the operator had no obligation to incur.”

Member Rosser in Sadlo v Viceroy Gilead Pty Ltd [2013] NSWCTTT 559 at 10

If we read the NCAT ‘flyer” on representation then we see that because an OC is an artificial entity it only really needs to ask and it gets to be represented even though the guide hints at an SC member or the agent representing. Agents as representatives is a bit of a joke because most agents do not know strata law very well at all and to pay someone with no real clue $200-300 per hour to be clueless isn’t sane.

“NCAT members were growing so tired of having to explain the law ….”
I like that because there are a lot of cases where it is very clear the Member does not know the strata law; perhaps they too need representation, LOL.

At a recent NCAT matter I was involved with the Member at the conciliation hearing want to make an order that was contrary to a section of the Act. The Member had no idea what he was doing but it was his idea, it sounded equitable to him, so he wanted to run with it. Fortunately events had overtaken his poor idea and when I subsequently questioned if he was fit for purpose with his overlords they did not want to know about it. NCAT had the tape of the hearing, they could play it back and hear that my assertions were correct, they wouldn’t touch it.

And let’s not forget the object of the “NCAT” Act
3 (d)  to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible

If representation is the default position then cheaply must have taken on a new meaning in or around the $500-700 per hour mark.
Also ‘as little formality as possible” means what; seems it means get a lawyer.

It seems the cheap and informal dispute resolution mechanism is “quickly” becoming only for people with money.

Anyway; the question is more about should the SC members get the protection of the OCs legal umbrella in a s 238 matter.

What I wanted the poster to understand was no one has brought a s 238 application and got favourable orders. So if anyone should be worried about costs it should be the applicant seeking such an order.

[The Hood]

How much time must the SM give for motions? The answer is none.
As Jimmy says you have until the agenda is mailed which more reasonably can be considered to be until the agenda goes to print. No one needs to tell you when that is.

It is a perennial problem in strata that people think there is some window of opportunity to lodge AGM motions that they need to be told of when in fact there isn’t. If you have a motion put it in, even if it is the day after your AGM, put it in. As soon as you think “i want that motion at my next AGM” then put it in.

As for the strata search. There is a process where you make a request to search, you pay the fee, you get a date within a certain period. It is all in the Act, ss 182 and 183 and easy enough to find and understand.
You get a date no later than 10 days from the request. Clock is ticking.
If that process breaks down because you agent is a dud then you can go straight to NCAT for an order and NCAT are somewhat sick of OCs withholding records so as long as you have tried the process and failed due to the agent or OC then you will get favorably orders.

I think readers should keep in mind if the agent does something wrong it amounts to the OC doing something wrong so it is better to pursue the OC than the agent because FT really do not police agent competency.
Section 54
(3) Any act or thing done or suffered by a strata managing agent in the exercise of any function of
the chairperson, secretary, treasurer or strata committee conferred on the strata managing agent
in accordance with this section—
(a) has the same effect as if it had been done or suffered by the chairperson, secretary, treasurer
or strata committee, and
(b) is taken to have been done or suffered by the chairperson, secretary, treasurer or strata
committee.
(4) This section is subject to section 56.

The agents mistakes are the OCs mistakes subject to the exclusions of s 56.
When you are blaming the agent you are generally, in effect, blaming the OC.

And please understand there is a management agreement which details what the agents role is. Do not just think they are responsible for everything. Agents are employees who do specific things, the OC is still the boss.

And try to avoid using the words like “is this legal” because it implies it might be illegal and it is actually more non compliant than illegal and these are very different thing. Don’t want to end up on the wrong end of a defamation case.
Is it legal?
Is it compliant; definitely sounds like it is not.

[The Hood]

For what it is worth my SP, like many, have entrenched management that are protected by the SR threshold.
I was one of those who lobbied for this change during the submission period.

The majority can make you and the majority can now break you.
Let’s see how it plays out.

[The Hood]

Jimmy-T wrote:

Yeah … but no. Call the cops and say there’s a car trespassing on common property and they will tell you it’s not their problem – it’s neither private property (although it is) nor public property (which it isn’t) and the issue lives permanently in their too-hard basket.

So true.
In effect the people are abandoned by the State who do have jurisdiction but do not want to put resources into it.
SHAME on them.

[Author]

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