[SaltyOne]

Found it:
Strata Schemes Management Act 2015 No 50.
141 Changes to and consolidation of by-laws
…
(2) The change to the by-laws has no effect until—
(a) the owners corporation lodges a notice, in the approved form, with the Registrar General, and
(b) the Registrar-General makes an appropriate recording of the notice in the folio of the Register for the common property for the scheme

This is not the first time that the SM has manipulated the registration process to thwart Owners’ intentions – the last time they just ‘forgot’ to do the registration and it wasn’t noticed for two years.   I thought at the time that it was just incompetence, but it is now obvious that it was deliberate.  A warning to owners – double check that the SM registers the by-law changes approved at the GM!

If the Committee approves that application it will be necessary to go to the tribunal to declare the original by-law invalid on the grounds of what it purports to do, not that it was repealed.  Very annoying.

Thanks to all who replied.

[SaltyOne]

A small update.

Reading between the lines I now believe that comments I am receiving from the SM such as “…the meeting was not to be decided wholly  by pre-voting the Form is acceptable as it reflects the agenda notice.” makes it fairly clear that the SM believes that it is only ‘Pre-meeting electronic voting’ that needs to be approved by a resolution of the owners, and any other way of voting, such as filling in a paper form and sending it by e-mail to the Secretary, does not need owners approval.  Anything I can find on-line indicates that is not the case.

The SM has indicated that their IT department is working on a system for providing S55 reports. No time frame is indicated, and no commitment to provide the reports that are now overdue!

[SaltyOne]

Thanks to everyone who replied.  The principal reason for sorting the issue out has now disappeared, but it will have to happen eventually.  I’m pretty sure the OC has never approved pre-meeting electronic voting (other than under Covid provisions) because the SM has never been able to show me the minutes where it was decided, I can’t find any reference in the copies of minutes I have (which might be incomplete), the explanations that have been provided during the latest argument have been devious and erratic, and the two meetings where pre-meeting voting forms were provided used quite different procedures. I can’t examine the OC records for myself because the SM will only accept credit cards for the fee!

There is no critical issue to be decided – I am just trying to get everything done right and established as a standard going forward.  The agenda for the meeting had the form for the written votes embedded, and I had hoped we could get it re-done properly when the agenda was re-issued.  I had thought it was going to be re-issued because the SM didn’t turn up on the date originally scheduled, and I assumed that the process would start over with the new meeting date.  But after the discussion about what was wrong with the original agenda, and a 3-week delay, the SM simply issued a notice that the original meeting had been adjourned to the new date, thus avoiding any need to acknowledge the problems with the original agenda and issue a new one.  How a meeting that never happened got adjourned is a mystery.

The bigger issue for the current meeting is that the SM has never provided a S55 statement. That might be interesting.

[SaltyOne]

We are getting into legal details and it is possible that there is no clear-cut answer, but:

in the Act –
28(3) The regulations may provide for the following—
(a) the ways of voting that may be specified under subclause (1)(b),
(b) the circumstances in which a particular way of voting may be specified under subclause (1)(b),

The Regulations have done just that –
14 Ways of voting
For the Act, Schedule 1, clause 28(3) and Schedule 2, clause 10(3), a notice for a meeting of an owners corporation or a strata committee may specify one or more of the following ways of voting—
(a) voting by electronic means while participating in the meeting,
(b) if the strata committee has, by resolution, adopted pre-meeting electronic voting as a way of voting—pre-meeting electronic voting for a meeting of the strata committee,
(c) if the owners corporation has, by resolution, adopted pre-meeting electronic voting as a way of voting—pre-meeting electronic voting for a meeting of the owners corporation

I’m reading it that since the Regulations have taken up the option allowed in 28(3) and specified a way of voting for someone not present at the meeting then that is the way that must be used.  Does the detailed definition of pre-meeting electronic voting that follows that section mean that there is no other way of conducting this type of voting?  The way I read the Act at 28(3)(b) is that if it’s spelt out in the regulations then that’s the rule.

The Act at  28(c) could possibly be read as not limiting what the Owners Corporation can do, but, given the title of that clause, I am reading 28(c) as not limiting what the regulations can do.

(FWIW no-one has been able to show that the OC ever approved any form of voting for those not attending the meeting other than by proxy.   The best they can do is to show a set of minutes where that apparently happened.  That’s a discussion for another day).

 

 

 

 

 

 

[SaltyOne]

Quirky wrote:

Yes, in NSW the chair has no exemptions,

Thank you.  It seems odd that the NSW legislation wasn’t drafted on the basis of the ACT experience.   It seems we will need to fall back on the emergency solution.  I notice that the sample proxy form posted by Consumer Affairs allows for an alternate proxy to be nominated if the first nominated proxy holder is unable to vote their proxy due to having too many, which is an assumption that I can’t see is supported in the legislation, but likely useful in some cases. Unfortunately it’s no help here.

Given the process we will need to go through to get this done I will try to get electronic voting added to the agenda for this meeting and kill two birds with one set of proxies.

 

[SaltyOne]

tina wrote:

Upon reflection, we should have terminated the strata manager’s contract for this.

It is possible that the Committee might be prompted to start the process to do exactly that, although we don’t have any OC funds being involved.

One instance was wooden flooring which I believe is laid over the existing courtyard paving.  That would amount to new flooring on top of a common property floor (according to the Strata Plan) inside the lot, and therefore comes under major works not affecting the common property but visible from outside the lot.  The other involved ripping up the existing paving and replacing it, which is a change to the common property and is also visible from outside the lot.  So that’s two EGM special resolutions and one by-law requirement just waved through by the SM.  I want the S55 report to see exactly what was or wasn’t done in respect of those changes.  It is just the latest in a long list of incompetencies.

 

(FWIW the plan says “Courtyards are restricted … in depth, except where paved, to 1 below the upper surface of the concrete floor of the dwelling to which they are attached”.   I believe that exclusion means that the paved area (about 3/4 of the courtyard) is a common property floor.)

 

[SaltyOne]

Sir Humphrey wrote:

In the ACT, the chair is exempt from the proxy limit.

I can’t find anything similar in the NSW legislation.

As far as I know NSW does not have ‘absentee’ voting. We do have electronic voting, which would obviously solve this problem, but the SM has never organised for the appropriate resolution to be put at an AGM, and previous committees have not been proactive in considering how changes to the legislation will affect them.  My list of things the SM has not been doing properly is growing quite long.

I have an emergency solution to the current problem, if it’s needed.  The Committee will cross-nominate each other. That is, each committee member will be ‘present’ at the meeting by virtue of having submitted a proxy form, and will therefore be eligible to be nominated as a proxy holder for another committee member.  Then we only need two others to do the same thing and we will have a quorum. But I would like to avoid that if possible.

[SaltyOne]

tina wrote:

Section 55 seems to have been there for a few years.

Thanks for that.  I found the timeline hard to work out, so I will take your evaluation over mine (and it suits my purpose!).

I will make one more formal request. If that fails I will do an inspection and if I can’t find it I will raise an issue for mediation.

The reason I want the list is conflicting information over the approval of some courtyard paving work.  At first I was told there was no work going on (with several tradies’ vans parked in the drive!) then I was told it was a replacement of existing flooring which didn’t need approval (which it isn’t) and then I was told it was minor works because it isn’t visible from outside the lot!  It’s in a courtyard that is visible from all the surrounding upper-level units!

I am not greatly concerned about the paving (although there is an issue about enabling adequate inspection for termites) but the SM dissembling when asked about it and subsequent excuses and failure to take action when advised of the issue may perhaps provoke the Committee into doing something about compliance.

[SaltyOne]

S108 of the NSW legislation includes a paragraph:

(4)  If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.

It is also possible that the owners corporation could decide (by special resolution) not to maintain the property and remove it instead!

The best option would be to create by-laws authorising the existing arrangement in retrospect and, as part of that process, obtaining from each owner a commitment to maintain their own equipment.  This becomes difficult if the existing owners did not install the equipment and purchased the lot with an assumption that equipment on the common property (and not mentioned in a by-law) was Owners Corporation equipment and therefore maintained by the OC.

[SaltyOne]

tina wrote:

I found a “Strata Managers Report” in my old files.

Thank you for the response..   As far as I can tell the requirement to report this detail is new, so if you have an old report it would have been provided as a matter of policy, not law.   But I imagine it would come from the same source as a S55 report, namely the timesheet records of the SM used for time management control and billing, and I agree that it would be a part of the management software than any reasonably-sized SM company would be using.    I have no idea which software packages support this reporting, and one of the things I would like to hear is whether anyone is aware of any updates to these packages to specifically support the S55 requirement.  If updates have been issued that will strengthen my position when I argue that the SM should have supplied it as a matter of course (assuming they are using a decent software package, and if they aren’t, why not?).

Based on the responses so far I suspect that my guess that it is simply being ignored because it’s too difficult is going to be correct.

[SaltyOne]

1. The Owners Corporation is able to make rules concerning how the common property is usable or accessible to owners and others.  This rule would appear to be allowable.
2. It is unlikely to be regarded as discriminatory because the reason for the rule directly relates to the category of resident to which it applies. That is, it relates to the safety of children, and it applies to children. If a query were to be raised it would be assessed only on whether or not the safety of children had been properly assessed.
3. It is unlikely to be regarded as fraud against a minority because it confers no specific advantage on those proposing or supporting the rule.

So I would recommend getting out there and collecting proxies.

The OC concern about possible liability has some justification.  If an accident occurred and it was deemed the fault of the child or parent, then the OC might be sued on the basis that they did not take steps to prevent the child or parent putting themselves in danger – ie, imposing a ban or putting up warning signs.  Whether that claim would succeed is unpredictable.  For instance, if the OC passes the bylaw, but a parent was able to show that it was not enforced, then a claim might succeed!  On the other hand, if there was no by-law, but plenty of warning signs for both drivers and parents, then the claim might fail.  What would be certain is that there would be legal costs, but that should be covered by insurance.

[SaltyOne]

The SM may be referring to the part where the funds are repaid.  The Act requires that the repayment must be in the form of a special levy, and that would require a General Meeting. S76(2).

[SaltyOne]

The cleaner accesses the lot by walking up the stairs onto the balcony.

[SaltyOne]

Generally, failure to specify any proportion is taken to mean that the two parties have a ‘joint and several’ responsibility.  That is “a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment.”

The wording of the by law seems to also support that in the second part, where the two proprietors are lumped together as if they were one.

I would guess that if this ever had to be determined in some legal process, the division would be based on unit entitlements.   It’s possible that UE corresponds to floor area, and that is the basis for the recalculation.  But in absence of some such determination I believe that the Managing Agent cannot impose any particular proportion on either lot.

[SaltyOne]

We had a similar situation when the Committee decided they didn’t want large trucks using the driveway so they put a height barrier at the entrance, without approval from the owners.  They refused to remove it until an owner who is also a lawyer put the case.   IIRC the points he made were:

The owners own the common property, not the SC.
The owners have a right of access to ‘their’ property.
Any change that restricts that right of access in any way must be a decision of the owners, not the SC.

The Committee thought about this for a while and reluctantly agreed, and took the barrier down.  They might have got some other advice of their own, which would have been the same.   The reason for the concern in this case was the impact that not being able to bring a furniture van to the front door might have on resale prices (a fire engine would have driven straight through the barrier).

[Author]

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