[The Hood]

I would firstly say the cost of sending the letters Sir Humphrey mentions is a little steep. These costs need to be reasonable.
In NSW the agent can charge these costs to the OC but the agent can not without a judgment just slap them on an owners register.
It is not until after NCAT or a court rules these are a debt as part of a claim that they become a recoverable debt and then they can then be slapped on the levy register of the owners in question.
Fair Trading said they were going to educate agents on this issue but that was just a disposable line because agents still slap amounts on peoples levy register when they have no authority to do so.
Rather than load this comment with case law I will simply provide an extract from a response from Fair Trading

Fair Trading in 2016 (bold added)

“I have reviewed your comments about my previous letter to you regarding section 80 of the Strata Schemes Management Act 1996 (the Act). Section 80 (1) permits an owners corporation to recover as a debt, a contribution that has not been paid, together with applicable interest and the expenses of the owners corporation in recovering those amounts.

Section 78 of the Act permits the owners corporation, or the strata managing agent acting in its stead, to levy those contributions on individual lot owners. The amount of this contribution, together with any interest applicable would be placed on the lot owner’s account. However, as you have suggested, the Act does not permit the inclusion of the cost of recovery of the contributions being placed against a lot owner’s account. It is necessary for the owners corporation to seek a judgment to recover those expenses.

In the circumstances, Fair Trading will take steps to remind strata managing agents of their responsibilities in relation to section 90 of the Act, and of Fair Trading’s views. Mr Geeves of Fair Trading will also be writing to you to provide further information on your complaint.”

Yours sincerely

Rod Stowe

Commissioner

 

[The Hood]

(1)  An owners corporation for a strata scheme may give a notice, in a form approved by the Secretary, to the owner or occupier of a lot in the scheme requiring the owner or occupier to comply with a specified by-law if the owners corporation is satisfied that the owner or occupier has contravened that by-law.

‘May’ is a discretionary term so the OC can argue that they are not compelled by the legislation to give a notice.

Case law on this matter is a little thin but ALLEN v STRATA PLAN 54664 [2016] NSWDC 217 implies the OC needs to take steps to actively enforce the by-laws. It will not be enough to simply have a by-law registered on title. The Owners Corporation and Strata Committee must actually take active steps to ensure that the by-laws are complied with.

AND one reported NCAT matter says:

The circumstances in which the management structure may not be functioning or functioning satisfactorily include where the relevant level of management;

• Fails to exercise power or make a decision to prevent a contravention by lot owners and occupiers of their obligations under the Act, including breaches of by-laws

Luong v Owners Corporation SP 87671 and Telmet Ventures Pty Ltd [2015] NSWCATCD 105

So even though the OC is not compelled by the wording of the legislation (s 146 (1)) to send a NTC it appears it is arguable that the case law suggests it is a function of the OC/SC to actively enforce the by laws.
If you need to go to NCAT to seek enforcement cite the above cases as they will assist your application.

[The Hood]

@Lady Penelope said:
I understand this (s 178) to mean that your Roll should have the details of the Agency which the Lot owner tenants their property through and not necessarily the actual Tenant’s details. The Agency is often a Real Estate Agency or the Public Housing Authority etc. If the Owners corp needs to contact the tenant then they should do this via the Agency.   

The information required under s 258 for a tenancy notice is:

(4)  The notice must be in writing and specify:

(a)  the name of the tenant and an address for service of the tenant, and

(b)  the date of commencement or assignment of the lease or sublease, as the case requires, and

(c)  the name of any agent acting for the owner in respect of the lease or sublease.

The OC, under s 178, should have the information to contact the tenant directly.
The ‘agent’ referred to in in s 178(4)  is a s 155 agent.

155   Owner may appoint agent if not able to deal with notices

(1)  An owner of a lot in a strata scheme may appoint an agent to receive notices and other documents under this Act if the owner is unable to deal with those notices because of intellectual impairment or physical impairment, illiteracy or an inability to read or write English sufficiently well or absence from the lot….

If the OC needed to, say, issue a NTC then it would need to serve it on the tenant. The OC should have this information as per s 258 (4(a)).

[The Hood]

PSBA Regulations 2014 (current version)

38   Managing agent to permit executive committee to inspect records

(1)  A strata managing agent or community managing agent must permit, on demand made at any reasonable time, any member of the executive committee of an owners corporation, community association, precinct association or neighbourhood association for whom the agent acts as managing agent to inspect any records or books of account of the corporation or association.

[The Hood]

Sorry for being so loathsome.
The last time ‘Rumpole’ was in the NCAT Bailey weaving bush-craft it was to help an owner get past a very obstructive agent who was refusing to give the owner access to the records.
The matter was SCS 15/60068 and ‘Rumpole’ drew the following observation from the Adjudicator:
“In her submissions of 1 February 2016 the applicant provides a thorough and authoritative examination of case law in support of her application. I am indebted to the applicant for such a submission.”

[The Hood]

Thunderbirds are go.
But ‘the Hood’ (a well know antagonist on the Thunderbird’s) might say to Lady Penelope:
Motions submitted prior to Nov 30 2016 did not require an explanation and so it would be inappropriate to be retrospectively applying the new laws to those motions.

The Hood might then deploy the Savings and Transitional Provisions of the 2015 Act by citing Cl 3 2(b).

3   General savings

(1)  Any act, matter or thing done or omitted to be done under a provision of the former Act and having any force or effect immediately before the commencement of a provision of this Act that replaces that provision is, on that commencement, taken to have been done or omitted to be done under the provision of this Act.

(2)  This clause does not apply:

(a)  to the extent that its application is inconsistent with any other provision of this Schedule or a provision of a regulation made under this Schedule, or

(b)  to the extent that its application would be inappropriate in a particular case.

Then the Hood might then say the above from Lady Penelope is all well and good but the explanation is only required in the requisition and there is no express requirement for it be on the agenda. This opinion is expressed in commentary by a well known strata lawyer from just north of the Shire.

The Hood might then up the stakes and start citing case law.

Rothman J in The Owners – Strata Plan No 62022 v  Sahade [2013] NSWSC 2002 at [27] said:

“The terms of s 153 of the Act apply to irregularities going significantly beyond the requirements of the calling of the meeting. It would apply to a breach of standing orders or the rules of the conduct of the meeting itself: see Clauses 7-20 of Schedule 2.”

Clause 14 relevantly says:

“The chairperson at a general meeting of an owners corporation may rule a motion out of order if (emphasis added):

    (a) the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws or would otherwise be unlawful or unenforceable, or …”

The Hood would then say:
I think, therefore, if a chairperson ought not to have ruled a motion out of order then the exercise his or her discretion to rule a motion out of order had no basis. In the alternative had the Chair ought to have ruled a motion out of order and did not then their discretion miscarried.

Discretion cannot be wielded willy-nilly. There is the need to establish the jurisdictional fact – i.e. ‘the Chairperson considers’ requires coming to a state of mind. Therefore there needs to be some facts to support the exersize of the discretion. If the Chair’s considerations are not logical, reasonable and have some basis in fact , even ‘fact’ via probative evidence, then the Chair heads down the road towards Wednesbury unreasonable.

Is Lady Penelope saying that for both questions the answer to no explanation being fatal is purely at the discretion of the Chair?

[Author]

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