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Neither the SSMA nor the Interpretation Act 1987 contain a definition of “minutes’.
The Macquarie Dictionary defines “minutes” in these terms:
“the official record of the proceedings at a meeting of a society, board, committee, council, or other body.”
In my view a document is not the “minutes” of a meeting until it becomes the official record of the meeting by being adopted at a subsequent meeting.
The position about minutes is made unnecessarily confusing because of the wording of various provisions of the SSMA which use the word without distinguishing between draft minutes and official/adopted minutes. In the parts quoted below, I have added in bold words to differentiate the two types of minutes:
Section 22 Minutes(1) Records to be kept
The owners corporation must keep full and accurate (official) minutes of its meetings that include (official) minutes of all motions passed at its meetings.
Schedule 1 paragraph 8
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—
(a) a form of motion to confirm the (draft) minutes of the last general meeting of any kind,
Section 43 Functions of secretary of owners corporationThe functions of a secretary of an owners corporation include the following—
(a) to prepare and distribute (draft) minutes of meetings of the owners corporation and submit a motion for confirmation (as official) of the (draft) minutes of any meeting of the owners corporation at the next such meeting,
Draft minutes may fail to be accurate through inattention, sloppiness or deliberate action. The requirement is for “full and accurate” minutes which, in my view, requires the amendment of draft minutes to make them full and accurate before they are capable of being adopted as official minutes.
I had not heard of and do not accept as correct the quoted take on the section. If it is correct, no lot owner would ever pay a quarterley levy until a judgment was obtained against them for each one. The same logic would apply to unpaid Council rates, water rates and land tax.
I can only draw to attention and rely on the specific provision in the Act.
The Standard NSW form of Contract for the sale and purchase of land – 2022 edition provides for adjustments of outgoings to be made between the vendor and the purchaser on the adjustment date (usually the date of completion of the contract for sale) in these terms:
“14 Adjustments
14.1 Normally, the vendor is entitled to the rents and profits and will be liable for all rates, water, sewerage and drainage service and usage charges, land tax, levies and all other periodic outgoings up to and including the adjustment date after which the purchaser will be entitled and liable.”Make certain that the unpaid levies are clearly disclosed in the strata information certificate issued by the managing agent on behalf of the OC under section 184 of the Act. Then, no purchaser (or his solicitor or conveyancer) is likely to expose himself to the risk of being liable to pay a levy left upaid by the vendor by faiing to ensure that this obligation is adjusted between the parties on completion.
If a sale is in the air, the purchaser and his solicitor or conveyancer are the OC’s greatest allies and best debt collectors.
Uberowner said:
the owners’ corporation could have been left high and dry.
It is not correct to say that that “the owners corporation would have been left high and dry”.
That will be the position of the purchaser:
Section 84 Liability of persons other than owners for contributions
(1) If, at the time a person becomes the owner of a lot, another person is liable to pay a contribution in respect of the lot, the owner is jointly and severally liable with the other person for the payment of the contribution and any interest on the contribution.It is for this reason that the purchaser becomes your debt collector and ensures (in the interests of the OC and themselves) that all outstanding levies are paid on or before completion.
My comment on the topic of Arrears of Levies is:
- The duty of the OC to repair and maintain, to pay insurance premiums, etc is hard coded into the Act and unavoidable.
- The cost of repair and maintenance, insurance, etc is funded only by levies.
- The duty of a lot owner to pay levies must be regarded as equally hard coded.
- The obligation to pay interest on arrears of levies is similarly (slightly less) hard coded but can only be reduced or waived by a general meeting.
- The obligation of the OC to collect arrears (within the provisions in the Act) must be regarded as equally hard coded.
- Community living should not oblige co-owners to support one of their number no matter how necessitous their circumstances.
The very sad truth is that if you can’t afford to pay the levies necessary to fund obligatory repairs and maintenance, insurance, etc, communal living with communal obligations is not for you. You must sell your strata unit and make arrangements which you can afford, including considering whether you can buy a house where you can do (or not do) what you like.
“The agenda item is very vague.”
Clause 7 Schedule 2 of the NSW Act: “The notice of a meeting must include a detailed agenda for the (Strata Committee) meeting.”
The Macquarie Dictionary defines the word “agenda” as meaning “a list of matters to be brought before a committee, council, board, etc., as things to be done” (maybe dot points) but goes on to define “detailed” as meaning “itemised in every particular: a detailed description.”
A detailed agenda clearly requires a lot more than than a mere agenda and an agenda item which is very vague may not comply with the Act.
In the absence of an opportunity for discussion and amendment of the motion proposed in the Agenda, the Strata Committee can only vote in favour of or against the motion set out in the Agenda. A vague (not detailed) Agenda item can only result in a resolution which is equally vague, perhaps to the extent of being meaningless and/or ineffective.
The requirement is for mediation by the Secretary under Division 2 or otherwise.
Mediation is required by section 227:
227 Certain applications cannot be accepted without prior mediation
(1) A registrar must not accept an application made to the Tribunal under this Act unless–
(a) mediation by the Secretary under Division 2 or otherwise has been attempted but was not successful, or
(b) a party refused to participate in the mediation, or
(c) the registrar considers that mediation is unnecessary or inappropriate in the circumstances.
Ultimately, the donation must have been made by the Managing Agent (if there is one) and he can be presumed to know that he was paying it wrongfully, unless he can prove otherwise.
Similarly a Managing Agent who pays for legal services in breach of section 103 can be presumed to know that he was paying it illegally, unless he can prove otherwise.
In each case the Managing Agent should repay monies he has paid out of the trust account without authority whoever else may be liable.
Unless an electrician (presumably not employed by Lot A) has linked Lot B and common property wiring into Lot A wiring after the meter, it does not sound like cabling is serving more than one lot but rather that foreign wiring has been attached to Lot A’s meter.
It may be advisable for the OC and/or Lot B rectify the mistake swiftly before the current owner of Lot A comes after them for a contribution towards electricity consumption since that owner purchased.
Looked at another way, the owner of Lot A may be entitled to say to the OC and the owner of Lot B “Stop syphoning my electricity”.
The original Flatchatter says “At the time the complex was built there wasn’t a formal body corporate established and as such no manager was employed.”
This does not appear to be correct. A body corporate has existed since registration of the Strata Plan. Section 71 of the Strata Tites Act 1998 (Tas) says “On registration of a strata plan, a body corporate is established under the name Strata Corporation No. ……. with the addition of the name of the strata scheme.”
Appointment of a managing agent (called a manager in Tasmania) is not compulsory. Section 80 is permissive:
(1) The body corporate may appoint a manager and delegate to the manager functions related to the administration, management and control of the common property.
(2) A manager is subject to control and direction by the body corporate acting in general meeting or through a committee of management.
A general meeting should be held to elect the members of the committee of management. How this meeting is to be called in the current circumstances of this body corporate, I must leave to someone more famaliar than I with the provisions of the Tasmanian Act.