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Have a look at this story about a strata chairman who won $120,000 in defamations (plus costs) and the details which are in this case.
Now, there is a certain leeway, or “qualified privilege”, permitted in strata committee communications, to allow for the efficient running of the strata scheme.
But as soon as those communications have an element of malice and broader distribution beyond just the owners in the building, that leeway can be seriously reduced.
In the first instance, you could write to the committee and ask that the personal harrasment of you stops immediately, attaching a copy of the above story.
Or you could ask that the committee exercises its powers under the act to remove the offending person from their executive role (but not from the committee) simply by electing another member of the committee to that role.
Or you could approach the lawyers in the above case (Goldsmiths) and ask them what your chances would be in a similar action.
Or you could seek mediation at Fair Trading in pursuit of a Section 238 action at NCAT to have the offender removed from office or from the committee entirely. I am told Section 238s are notoriously hard to get through, but just calling for mediation might focus the strata committee’s minds.
So many options, but you have to decide what you want – to be left alone, an apology or something else. But consider what Confucius said: “When you go seeking revenge, remember to dig two graves.”
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I would say, yes, in this case, you would much better to get a strata lawyer to draft the by-law and I can’t go past our sponsors Sachs Gerace Broome who will do a good job for a reasonable fee.
As for cost, I’d guess around $1000 (but don’t quote me on that).
So make sure you have 100 percent vote in favour before you do it. Might be easier and cheaper for all concerned to force the issue by getting everyone’s windows fixed at the same time.
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You could ask for this to be dealt with as a matter of urgency. If you get the same response, you may want to remind them that there is a time window on this under section 232.2 of the Act that says you can take them to NCAT if they either refuse or don’t respond at all within two months.
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First of all, if you don’t already have this on the agenda for the AGM, it’s already too late. There is no such thing (or there shouldn’t be) as “other business” on AGM agendas as everybody in the block is entitled to know in advance everything that’s being discussed.
However, the good news is that installation of air conditioning is regarded as a “minor” renovation and therefore only needs the approval of a simple majority of owners at a general meeting (which in most situations actually means the strata committee acting on behalf of owners) which can’t be unreasonably refused.
So normally I would tell you to gather together as much information as you can about the installation, the design of the equipment and the qualifications of the people who will install it. But since you don’t want to actually do this right now, I wouls say wait till you need it or ask the committee if they have any fundamental objection ot air-con and what you’d need to do to overcome that.
No strata committee worth its salt is going give you a blank cheque to install equipment about which even you don’t know the details. Neither should they bluntly refuse without good reason.
That’s not to say neither of those scenarios may eventuate, but the critical issue is that you can’t push this too far until you have more detail to offer.
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I always get suspicious when strata managers and committees give two or more unrelated reasons why work isn’t being done. Do they need approval to spend the money or do they want to run a poll on the style of lighting. No point in the latter without having the former.
I would put a crisp new $5 note on this being a dispute between factions on the committee who want different kinds of lights. Maybe some committee members who didn’t want the expensive eco-friendly lights are demanding cheaper, planet destroying ones. Or someone wants a hip industrial look while other want discreet hidden lights.
Either way, submit a motion to your next committee meeting that the committee explains in detail why your foyer looks like a set from a renovation TV show that’s been cancelled mid-season. And add a second motion that the committee approves the funding to finish the job or, if they don’t have the power to do that, they call an EGM to get the approval.
You are right to be angry and suspicious – so demand on-the-record answers and action.
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Flame Tree wrote:
The ideal in my mind is you all get them done if/as required …
Doesn’t really work if only one person (for now) actively wants this, but I can see where you’re headed with this.
One by-law that states agreed colours, styles, ongoing responsibility and level of certification of installer, would be there on the books for the next person to use as their template. If the next owner with awning-envy wanted one too, they could use the terms of that by-law.
The question would remain, who pays for the original by-law and general meeting etc. I think there would be an argument for splitting the bill between the original owner and the owners corp, with a payment structure for every other owner who wanted to use the same by-law .
There’s a way of doing this where only people who want awnings now or in the future pay for by-laws as they require them but they don’t have to pay ten times for the same piece of paper. Perhaps it’s one catch-all by-law but individual owners pay for each amendment that basically includes their lot under the same terms and conditions.
Brilliant ideas gratefully received (assuming Flame Tree hasn’t already said this and I’m too dim to understand).
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As the awning would be fixed to common property AND would affect the appearance of the building, a special resolution by-law would be required.
That by-law could (and should) specify the design and colour of the awning, and the capability of the installer, as well as ascribing future responsibility for the awning, plus the common property to which it was attached, to the lot owner.
Your committee needs to have a discussion about what designs would work and then set a benchmark. If the lot owner refuses to be limited in this way, you simply advise the owners corporation not to give the necessary approvals.
As for setting a precedent, think of it as setting a benchmark for future installations.
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TrulEConcerned wrote:
I heard from Fair Trading that the OC can enforce by laws if it chooses, but has legal requirement to do so. Is that true?
Did you mean “has no legal requirement”? (I assume so, otherwise the statement is contradictory) If so, once again, Fair Trading is giving out highly dubious advice.
I had a chat with former Fair Trading Minister Victor Dominello about this a couple of years ago and he was quite clear on this. “Read what I said on the second reading of the Bill (the 2015 strata Act)” The owners corporation has a responsibility to enforce its by-laws.”
I think the key phrase in the Second Reading is this:
Members of the strata committee will now have a statutory duty to act for the benefit of all owners and to exercise due care and diligence in their role.
This view and consequences for not doing so are enshrined in Section 232 (2) of the Act:
Orders to settle disputes or rectify complaints
(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
So, yes, the committee can decide not to enforce your by-laws in a specific case, either by refusing or failing to do so within a certain time, but then you can go to NCAT and ask for orders compelling them to take action.
If Fair Trading told you otherwise, they are wrong (yet again).
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The first thing that occurs to me is that the meeting may have been inquorate when the decision on the loans was made so, unless there were proxies left behind to make up the numbers, the decision may be invalid and you might have grounds for calling an EGM to reconsider the loan repayment period (or challenging the decision at NCAT if the committee refuses).
Apart from that, the easiest thing to do may be to go to your bank and ask to extend the loan or remortgage to cover the added amount.
But a challenge to the decision may be worth the effort – you can’t be the only owner with that problem.
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Items 8,9 and 10 of Schedule 1 of the strata Act cover this in different ways.
8 Matters that must be included in notice of general meetings
(1) The following matters must be included in, or accompany, the notice given of all general meetings:
(f) a statement that an unfinancial owner, mortgagee or covenant chargee cannot vote at a meeting on a motion (other than a motion requiring a unanimous resolution) unless payment has been made before the meeting of all contributions levied on the owner, and any other amounts recoverable from the owner, in relation to the lot,
9 Additional matters to be included in notice of AGM
The following matters must also be included in, or accompany, the notice given of annual general meetings:
(a) a copy of the last statements of key financial information for the administrative fund, the capital works fund and any other fund prepared by the owners corporation and any relevant auditor’s report,
and
(h) a form of motion to decide how to deal with any overdue contributions payable to the owners corporation,
10 Financial statements to be provided on request
(1) The owners corporation must, at the request of an owner or a mortgagee or covenant chargee of a lot, give to the owner, mortgagee or covenant chargee a copy of the last financial statements prepared for the administrative fund, the capital works fund and any other fund of the owners corporation by the owners corporation at least 2 days before the meeting at which the statements are to be presented.
(2) This Schedule does not prevent the owners corporation from determining that a copy of the last financial statements prepared for the administrative fund, the capital works fund or other fund is to be included in, or to accompany, the notice of an annual general meeting.
But apart from all that, as a contributing member of the Owners Corporation, you are entitled to see any correspondence or documentation that affects you, directly or indirectly.
Even legal decisions invoving the strata scheme that have been “sealed” from public view have to be made available to lot owners because they are party to the legal action and aren’t merely members of the public.
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To answer your questions:
a) and b) Proxies are not used at strata committee meetings. Instead, with the approval of the committee, another owner – including someone who is already on the committee – can speak and vote as an acting member. Same-same but different.
c) Acting members can’t be used to make up the quorum as their status has to be approved by the committee and the quorum has to be established before the committee can vote.
In the scenario you describe, the meeting would be invalid, as would any decisions taken at it (or at least they’d be subject to challenge).
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Jayse wrote:
No point getting retrospective approval, and I doubt retrospective approval can even be valid.
An essential part of a special resolution for changes to common property is the apportioning of ongoing responsibility for the changes. Under NSW strata law, if that isn’t assigned to the lot owner, it defaults to the owners corp.
So there is a clear benefit to the OC in demanding retrospective approval and there is a benefit to the lot owner too, because if they refuse, the OC can demand the restoration of common property back to its original state.
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This is a new one on me! The ultimate “vote of confidence” at an AGM is the election of a new committee (and committee members are not recused from that).
If you think your committee is indulging in Trump-like requests for self-congratulation, propose an amendment to the motion at the AGM that the committee also records issues with which owners have not been happy. It’s really just an extension of the original motion, so it should fly.
But everyone can vote if they want to. You could however call for a poll vote which would record who had voted and in which way.
If this has come from the committee itself, it sounds like they are under siege and looking for a little TLC. You could ask that committee members abstain so that the views of owners are more clearly reflected in the vote.
Or you could start gathering proxies form digruntled owners.
But it’s strange. Should be an interesting discussion.
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I have been told that judges feel insulted when plaintiffs or defendants represent themselves – it’s like you have no respect for their profession or the system and they tend to rule accordingly, regardless of the merits of the case.
Hire a lawyer and get them to go for costs, would be my advice.
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Austman said:
Why wouldn’t any SM or SC call the lift company if it’s a no cost to them warranty issue?
Perhaps because they don’t live in the building, they resented having to fix the lift and maybe even take some malicious pleasure in the fact that the lift that they fought so hard for so long not to have to pay for is still causing problems.
Speculation, I know, but beyond the bounds of probability?
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