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It is the role of the treasurer to keep track of the books and make sure all is in order. The role of an audit is to reassure the owners corporation that the treasurer has not made any mistake, accidentally or deliberately, or failed to pick up some mistake by the managing agent. I agree that it is not an audit unless it is an independent third party.
I am confident that JT would be correct about conduct of SC meetings in NSW. However, why do you ask the question? If a decision on a matter is finely balanced, it would be poor form for a subset of committee members to hold a meeting and decide one way when some members were unable to attend and they had made it known that their view was the other way. Even if legal requirements were observed for proper notice of the meeting and there was sufficient attendance for a quorum, the decision would be liable to being reversed next time the full membership of the committee could meet. If the decision had been acted on and could not be reversed, it would sour relationships.
On the other hand, if the purpose of the meeting was to decide an uncontroversial matter in which all were agreed, I think you could just discuss by email or other means to make the decision ‘out of session’ and record the result in the minutes of the next formal meeting.
He said he couldn’t at today’s hearing. Why not?
The Tribunal can only consider what is put in an application and notified to the other party. If you did not apply for orders that the SC be sacked and the SC were not given sufficient notice of that as the other party then procedural fairness demands that the Tribunal not consider that. You can’t just ask on the day ‘Oh and BTW, can we sack the SC as well?’
My impression is that it goes over well at the Tribunal or Court to focus just on the outcome you need and bend over backwards to avoid looking vindictive. So, for example, you could ask for orders that the penalty for failing to comply with a Tribunal order be applied but what would that achieve? Some money from the OC would go into state general revenue. It is not necessary for the outcome you want, which is to have the various works performed promptly. Focus on that. Then, at the next AGM, when it is all done, you can argue that this committee should not be returned since it failed to comply with Tribunal orders and could have cost the OC further penalties.
In the ACT, possibly similar in NSW, the next step would not be to go back to the Tribunal. Instead, you go to the Magistrates Court and apply for an Enforcement Order of the Tribunal’s order. The court is not interested to reexamine the facts of the matter; they have already been determined by the Tribunal. The magistrates court is only interested in asking a party if they have any excuse for failing to comply with the Tribunal’s order. In the absence of an excellent excuse, the Court will order the OC to comply with the Tribunal order. You, as the applicant, can ask the magistrate what the consequences would be if you get the enforcement order you are seeking and the OC again fails to comply with the orders. The magistrate will then very sternly explain to the OC’s representative(s) that failing to comply with a court order has more serious penalties than failing to comply with Tribunal orders and that they really do not want to have that sort of escalation.
Seems excessive to me. I could imagine several hundreds for venue hire and several more hundreds for the managing agent’s time and materials to produce and distribute meeting papers and several more hundreds at some hourly rate for the manager to attend a meeting out of hours, probably undertaking secretarial functions such as minute taking. Put all that together it might be over a thousand dollars, but not $6000.
Sounds like a mess.
This is not really Levies but instead a rather less formal fee for some sort of usage that is not in proportion to unit entitlements. As such, I don’t think that legislation that applies to actual proper levies can or must be applied.
Here is what I suggest. Since there seems to be no way to use the OC records to work out who has paid and who has not paid (of those who should) and the amounts are not trivial, perhaps the best approach is to appeal to people’s honesty, try to recover as much as you can and accept that a small number of people might dishonestly claim to have paid. The losses will hopefully be small.
Explain the situation in a letter and back it up with other communication so everyone knows that it can’t easily be overlooked.
Ask everyone to check their own financial records.
Ask those who have paid to confirm that in writing to the OC, ideally with evidence of payment. (Without spelling it out, it is clear that you can claim to have paid even if you can’t prove it. Some will honestly be sure they paid but their financial incompetence is such that they can’t find the evidence. You have no choice but to give them the benefit of the doubt. A few might boldly lie but they will have to actively write claiming that they paid while providing no evidence while knowing that everyone else will be providing evidence. A few might have the gall to do that but the unfairness is likely to be reduced. They will know who they are and they will know that you know they didn’t provide evidence. Most, I suggest, will not be so bold.)
Ask those who have not paid to please do so. Give them a new, longer time by which to pay to make it easy for them.
Near the end of the generous time, send a cover letter/summary to everyone saying that “As you may recall from our previous letter, we have been trying to resolve the … issue as fairly and equitably as possible. We are pleased to report that most units have now either provided evidence of earlier payment or have paid since that letter was sent. Could the remaining few units please remember check their records? These remaining units have details for payment and the relevant amounts on an invoice attached to this cover letter.”
I suggest that this approach will produce less inequity and less bad feeling if people feel that there has been openness, trust and honesty applied and most people have behaved well. It think it is likely that most will behave well.
Since you ask, the musical stings neither annoy nor delight me. I don’t think they are really needed but they don’t bother me either.
The podcasts I often listen to are science or philosophy related ones from ABC Radio National and these: https://reneweconomy.com.au/series/podcasts/
I think JT is likely correct. If they can demonstrate power of attorney for the deceased estate, then they would have the power to appoint themselves as proxy for the deceased owner if that owner’s name is still on the title documents.
Also, from JT’s quote, it seems that a person who is empowered to execute a transfer of the title, which might be the executor, can act as the owner and could appoint a proxy, which could be the heir apparent.
I think the chair of the meeting would want assurance from the Secretary that appropriate evidence has been presented before the chair would accept their vote. With such evidence (and levies up to date), I think the chair should accept the heir apparent’s vote.
If this were the ACT, then the person to whom ownership passed would have to have notified the OC that they were now the owner and have provided their details for the unit roll in order to be eligible to vote. I expect an heir in such circumstances would have to show evidence that title to the property had been transferred to them before the OC would record them as the owner. Where there are more than one owner on the unit roll, one person must be recorded as the person who will act on behalf of those multiple owners, including voting.
Alternatively, if title has not yet been transferred but the deceased owner had appointed someone as their proxy, then I think that proxy could vote.
I don’t think an heir who is not yet on the title documents, who was not appointed as proxy, can just put up their hand and claim a right to vote.
I don’t think it matters if someone who might not be the owner has paid the levies.
The above is what I think would apply in the ACT and I am just guessing that Vic would be similar.
All I can suggest is that you work on the two who are siding with the one person. One person can’t decide the sinking fund levy. If you can convince one person to your way of seeing things, you might manage to outvote the other two if you have more unit entitlements and demand a poll vote.
Long-time maintenance or any other sort of service contracts are almost impossible in the ACT. They are generally limited to 3 years. From memory I think they can be a perhaps two years longer for the first five years of a new OC but nothing like 99 years.
Also, I think an embedded network is something quite different and there are strong consumer protections around them already. The embedded network I am aware of is where the OC negotiates a better price for an energy supply, usually electricity, on behalf of the owners. Rather than each unit paying a separate account with a retailer, the OC has an electricity meter for the whole site and pays for that one supply. Then the individual owners pay the OC pro rata for their consumption. This requires the OC to read meters but it might be able to that at lower cost than the retailer and multiples of supply charges are avoided. If the OC has a solar electric system behind its meter, the common property of the building and all the lot owners are likely to consume the entire solar production, thereby avoiding the retail price of electricity to the extent the building generates its own. The benefit is shared by all the owners since they collectively only have to pay for their share of the import by the building and the common property electricity costs are lower too.
The Australian Energy Regulator has strict requirements that enable people to opt out of such embedded networks if they feel they can get a better deal by signing up with a conventional retailer.I wonder if the downstairs neighbours were not complaining of an actual drip of water into their unit but the sound of a drip. Perhaps the drip into the bath could be heard in the unit below, which would explain why replacing a washer was enough to fix the neighbour’s complaint. The high cost for a washer replacement might be explained by the time taken to work it all out. It sounds to me like the cost was incurred because of impatience when the upstairs people said they were going to get their dripping tap fixed.
I also am in the ACT. I think this is something that could be argued either way. If the units at the front are ‘class B’ units but the stack of units are ‘class A’ it might complicate how it might be argued. Still I think you could jump either way.
If a utility service is provided for the potential benefit of all units, facilities associated with the provision of that service are an Owners Corporation (OC) maintenance responsibility (UTMA s.24). So, it might be argued, the OC is providing an intercom service to all units and should fix any part of that service. If the OC wanted to go this way, it might pass a resolution declaring that it accepts that the provision, repair and maintenance of an intercom service to all units is an OC responsibility.
On the other hand, it could be argued that the individual intercoms on the separate units at the front of the complex are individually the responsibility of those individual units to repair and maintain. Each intercom is only providing a service to that one unit, a fact that remains unaltered by part of the device being on common property. The intercom on the ‘stack’ at the back, it could similarly be argued, does not service all units and is a responsibility of just the subset of units that are in the ‘stack’.
If the OC wanted to put it beyond doubt that it was an individual responsibility – just the ‘stack’ units share the cost of repair and maintenance of the stack intercom and the ‘front’ units are each responsible to fix their individual intercoms – the OC could pass a special resolution at a general meeting to that effect. It could be registered as an amendment to the OC rules. If anyone were to persist with an argument that it was an OC responsibility, the special resolution would also have satisfied the requirements of s.25 of the Act, whereby an OC may exempt itself from a maintenance responsibility by special resolution if it would not have a significant adverse effect on the appearance of the common property or the safety of occupiers of the units or the public.