[TrulEConcerned]

Jimmy I don’t dispute that the site in question is legitimate.

I dispute that this strata plan receives a scintilla of benefit from this expense which was paid for by the OC. Of course I can’t speak for other strata plans Mr Secretary may be involved with.

The facts are:

1. s. 46 of the SSMA (as Scotlandx indicated) requires payment to a SC member be approved retrospectively by the OC.

s.46 Payment of officers of owners corporation
An owners corporation may pay to a person who is an officer of the owners corporation or another member of the strata committee of the owners corporation an amount determined by the owners corporation at an annual general meeting in recognition of services performed by the person for the owners corporation in the period since the last annual general meeting.

This failed to occur.

One does not need a Winston Terracini or a Chris Murphy to argue that paying a person’s subscription is synonymous with paying him directly and that payment without the OC’s approval – let alone discussion – is a breach.

2. Mr Secretary has no practical role at this agent-managed strata. The agent was delegated all the functions of the SC. The SC don’t accept emails and at the last AGM they RESOLVED that they do not to have to respond to emails (and they listed their subjective reasons for that).

The SC are so uninvolved that they don’t even hold meetings where they could share the wisdom he gleans from the subscription. That’s not entirely true, they do hold a single 5 min SC meeting: being the one tagged on to the AGM, where he and another vote himself as Sec/Tsr while the other member is voted in as Chairman; and

3. As to his alleged 62 visits to the strata plan to make repairs (again without quotes and without reports as to what, why and how), I will see if the portal I was offered to look into has documents that can shed light on these alleged visits and associated spending.

 

Regarding inspection of records, if the portal I was given access to again malfunctions, as it did today, am I within my rights to insist on access to the original documents: invoices, emails, contracts etc in the agent’s possession?

Thanks again.

 

 

 

[TrulEConcerned]

Jimmy is right about reasonableness and courtesy. If you exhibit these attributes, you should not be denied the opportunity to speak.

That said, permit me to throw in my 2c worth.

When I was Tsr of a large strata, we used to allow anyone (let’s call them “observers”) to speak on any issue listed on the agenda when the matter was discussed by the committee, so long as the person indicated he/she wanted to speak (by raising a hand) and spoke only after being recognised by the Chairman. They were always recognised by the Chair and only if they rambled on and on and on, were they asked to “wrap it up”.

If the observer wanted to discuss a matter not on the agenda then he/she should in advance of the agenda being circulated, advise the managing agent or the committee of the issue he/she wants to raise, have it listed on the agenda and, if the observer wants to give a positive impression, he/she could indicate their views on the matter to the committee in advance of the committee meeting.

[TrulEConcerned]

Good evening,
You may recall that I was shocked as were Jimmy and Scotlandx that a SC member of my block is having the OC pick up the tab for his “strata education” subscription.
After asking for access to ALL of the strata’s documents, the agent granted me access to invoices via an electronic portal, which doesn’t work properly. I can only view some but not all invoices.
I made one discovery so far. I found that the “strata education” is in fact a subscription to something called Your Strata Property. I say “I discovery” because Mr Secretary submitted an invoice that looks like a neatly typed shopping list and included two line items for Your Strata Property: $400 and $58. He did not (as far as I can see, note the portal is problematic) include a copy of the actual invoices or receipts from the publisher he would have received upon paying his subscription dues with our funds.
The $458 was included as part of an invoice whose bottom line mentions: “All items are cost recovery total of $911” , that Mr Secretary passed to the agent (for payment to himself) after having the Chair note by hand on the invoice that she “approves payment”. I was not made aware nor can I find records of any agendas for and minutes of meetings that took place to discuss and approve this payment.

Cunningly Mr Secretary does not list payment for his time, but only for 62 trips via the bridge (@$3 each) for which he billed $186 (he states to attend to strata repairs) as well as purchases of paint, lights, gloves etc, items whose original invoices which were never sighted by the OC nor is there any way of knowing how much of what was bought ended up in Mr Secretary’s possession for personal use.

Interestingly, regarding the $458 subscription, on the website he signed up to, I found the following Q & A:

Q. Can I ask my strata building to pay for my membership?
A. It doesn’t hurt to try!
If you are a committee member in a NSW strata or community scheme, you may be entitled to an “honorarium” – a small annual payment for your services as a committee member. Some YSP members who are also committee members ensure that the cost of their YSP membership is covered by their honorarium. If you’d like to find out more about how to claim an honorarium as a committee member….

Q. Can my building join, or is membership only for individuals?

A. We are currently only offering individual memberships. If your building is interested in a ‘building wide’ membership, please let us know via support@yourstrataproperty.com.au and, subject to the level of interest, we will consider offering YSP memberships to buildings…..

As these expenses (of $458) were never discussed or approved by the OC; the fruits of the membership (papers, discussions and phone calls) were never shared with the OC; as no honorarium was ever discussed or approved by the OC; as the provider herself makes clear: the service is “for individuals”, am I correct to conclude that Mr Secretary is brazenly breaching the SSMA and enriching himself?

I look forward to your guidance.

 

[TrulEConcerned]

Jimmy, thank you for your prompt feedback.

I considered your response, did some more reading on the matter and spun a yarn with NSWFT.

Notwithstanding the agent did say at the 11/2020 AGM that I would receive any and all information whenever I wanted, at no charge to me whatsoever, his reply to my email makes clear that he is able to supply me with the information I seek, but will charge me.

I replied that if his charge exceeds $31, then not to bother answering my questions. Instead, I will seek access to all of the OC’s records by way of an inspection, pursuant to s.183 where the fee is $31 for the first hour. Of course if material that should be in his possession is unavailable to me, that would be a breach of the Act. (Note a few years ago, with another managing agent, but at this same strata plan, with the same SC in place, my inspection of records at the agent’s office was hampered by the inexplicable unavailability of bank statements).
Coming back to what your suggestion of asking for a General Meeting of the owners – which if unsuccessful, will point the way to apply to NCAT to have the culprits removed – I will ask for such a meeting after I have inspected the records.

[TrulEConcerned]

Greetings again Jimmy, ScotlandX and Kaindub (apologies if I missed anyone),

I looked through the cash payments journal again and over the weekend wrote to the agent asking for:

(a) Copies of invoices in six instances (3 of payments made to one SC member and 3 payments made to 2 contractors);
(b) An explanation by the agent for each of the 6 payments made (including a breakdown of each invoice); and
(c) Copies of emails that the agent relied upon to make the payments.

The agent replied today indicating that he can provide this information but “there will be charges as this is outside his scope of work” and that he will revert soon.

I replied that I will seek advice from Fair Trading on being charged.

Questions

(1) Can he charge for me inquiring about secret payments he made to a SC member? I say “secret” because they were made several months before the 2020 AGM and never disclosed to the OC at any time. But for my recent inquiry, the secrecy of a SC member being paid would remain a secret.

(2) Can he charge me for asking for details about about large payments made to contractors totaling $8,500 (I consider the sum of “$8,500 to be “large”, as we’re talking about a strata of just 5 lots).

Bear in mind, at the AGM the agent made clear that I would receive any and all financial information I sought from him when I wanted it. There was never mention of being charged. This was one of the ways the agent tried to defuse the tension between me wanting to join the SC and the solicitor – who held the roles of Treasurer and Secretary on the pre-AGM SC and now holds the same two roles on the post-AGM SC – repeatedly blocked me from joining.

(3) I see no point in asking to hold a General Meeting or SC Meeting (remember this is a strata of 5 lots) because the Treasurer/Secretary (1 lot) and Chairman (1 lot) will no doubt convince the other 2 lots that my interference is unwarranted and should not be rewarded with a SC meeting.

What course of action should I take? All advice appreciated.

[TrulEConcerned]

Good evening,

Thank you Jimmy and Scotlandx for your wise counsel. As I understand it, payment to SC members for work they claim to have performed and what smells like dubious education expenses, can only be approved after the event at a general meeting of the OC. So a SC meeting (even if it was held, which to my knowledge never took place) does not have the power to pay the SC member, let alone an email from one SC member to the agent (in the absence of an SC meeting) instructing the latter to pony up the dosh.

I will chew your posts of today (18/02/21) over the weekend and email the agent as you suggest. I am tempted to also follow Kaindub’s advice of asking the agent for copies of emails relating to these payments, given Minutes of meetings – which are irrelevant in any case as Scotlandx argues –  are unlikely to exist given no meetings took place.

In the first instance I will seek a copy of invoices tendered to the agent and a breakdown of those invoices.

 

[TrulEConcerned]

Hi Scotlandx,

Thanks for the reference to s36 of the SSMA regarding pmts made to SC members. I also found s46 applies.

I have a related question: at the last few AGMs we passed a resolution that there are “No matter shall be a restricted matter that can only be decided at a General Meeting”. Does that include pmts made to SC members (which as mentioned, were made without informing the OC, without agendas and minutes being sent to OC members listing the pmts and confirming the SC’s approval of them, for what looks like self education purposes, “strata education”).

If the “No restricted matter” AGM (passed) motion does not invalidate s.46 then I suppose my next step is to ask the managing agent for details of the pmts and a copy of the minutes approving pmts. After all, the agent can only pay a SC member on presentation of minutes, right?

If the “No restricted matter” motion invalidates s.46 then how do you suggest I challenge the “strata education subscription” pmt that the SC member billed the OC for.

Thanks again.

[TrulEConcerned]

Scotlandx,

Thanks for your insight. Much appreciated.

I will wade through the documents I received from the agent and return to this thread when I discover more “irregularities”.

Thanks again.

[TrulEConcerned]

Good morning Kaindub,

Thanks for the reply.

1. “Strata Education”

The committee member in question has been in his position for over 20 years. He is a very knowledgeable solicitor. The only possible explanation I can come up with why I see this expense for the first time is that his employer is no longer paying for this subscription, hence he is billing the OC. Until we hired a managing agent, he ran the strata for many years on his own, without billing the OC for such “education”.

As to the only other SC member, in case you may think the “professional education” is for her benefit, please note that she takes no part in managing the strata, she is quite senior and has no interest in matters such as “professional education”. Whenever any owner has I a query, small or large, she always refers them to the agent who often consults the solicitor.
But I will take your suggestion about asking nicely for access to all the resources paid for by the OC. Let’s see how he responds. I mean, how the agent responds as the SC member, as mentioned already, doesn’t want to be bothered by owners.

2. Strata Maintenance

As to the SC member billing and being paid by the OC for “maintenance”, you wrote: IMHO if he won the job on a  competitive tender and had the necessary qualifications and was approved by the committee then i see that its a benefit for the OC to pay them for the work.
Please note: he did not provide a quote to the owners; neither he nor the agent sought tenders; neither the SC member nor the agent informed the owners that he was going to do work; he did not provide the owners with an invoice, presumably he just provided it to the agent who paid him; neither the SC member nor the agent inform the OC of when what I consider is an “irregular” payment was made. Had I not asked for certain financial reports, I would not now know he was paid 6 months ago.

Who knows how much he was paid over time in secret?

Do understand that my concern is not that work was done. It most probably had to have been done, but in the absence of quotes from the SC member, the absence of a competitive tender and secrecy of the agent and the SC member of concealing this “irregular” payment(s), the OC is poorly served. Unsurprisingly, transparency in the financial relationships of committee members  was what I always pushed for when I was on the EC (back in the day), before I was pushed out of the EC.

[TrulEConcerned]

Thank you both for your advice.
Before I had a chance to share your points with the agent, he emailed me what I requested (3 days after I initially asked). It seems that the SC saw the light and realised it was unable to deny me what I was after.

A quick reading of the information provided reveals that a member of the SC billed the OC for “continued education” in the area of strata management in addition to his (the SC member’s) labour and material for “repairs”. Note the SC was given the right to spend certain funds on the strata’s upkeep without referring to the OC for approval. But I recall that OC members were to be informed ideally before the event of such expenditure. These debits to the strata’s a/c are over 6 months old and were never brought to the OC’s attention.

My focus is on the “strata education” expenses.

Given:

1) All management functions are performed by the agent;
2) SC members don’t even want to be bothered by owners at any time. They insist that all communication/requests etc be directed to the agent at all times; and
3) SC members never sought nor received permission to bill the OC for what smacks of self improvement expenses

can SC members charge the OC for matters that are unrelated to the management of this strata?

If “yes” then, can I insist they make available to all owners all the literature and resources they are privy to, including but not limited to access to education portal, seminars, events etc? And if my request is denied, can I insist they repay what I consider an unauthorised withdrawal?

If “no”, that is, if what they did is indeed unlawful, can the SC save themselves by retrospectively approving these expenses? Even though there is not a single valid reason for milking the OC. (Note they have the numbers, ie votes, to do anything they want at the strata).

I look forward to your views.

[TrulEConcerned]

Thank you both for your wise and speedy replies.

JT, I like the your point on privacy.

Kaindub, I like the point on emails. I never thought of that. As to your comment on them playing “silly buggers”, would you believe that there are two solicitors on the SC?

I am sure that in due course after I receive the required documents, I will have more questions, so will return to this thread at that time.

 

[TrulEConcerned]

Hi Jimmy, sorry about the excess coding. I had no idea how a cut and paste job would look, but will pay close attention next time so as to avoid a repeat.

[TrulEConcerned]

Hey Kaindub,

Thank you for your reply. As to the passing of by-laws and the required percentages, given the two SC members (representing 2 lots) hold a proxy each from ageing owners (the building in question has 5 lots), they will always have the numbers to win.

As to your point on my “missing meetings”, when I previously asked about agendas and minutes of SC meetings, I was told “you did not receive them because there were no meetings”. At other times I was told “the agenda was posted on the noticeboard”, but I replied “we don’t have and never had a noticeboard”.

Given the SC has no restriction on how much they can spend without referring to the OC,:

A) must they formally meet at SC meetings (and send agendas to members of the OC and in time produce minutes) in order to make decisions that impact on the OC or can they spend money and make other decisions informally,   without informing folk like me who are not on the SC?

B) One other query, if I may.

The OC adopted the following from the model by-law.

<span class=”heading”><span class=”frag-no”>18</span></span>   <span id=”sch.3-sec.18-he” class=”frag-heading”>Compliance with planning and other requirements</span>

<span class=”frag-no”>(1)</span>  The owner or occupier of a lot must ensure that the lot is not used for any purpose that is prohibited by law.

<span class=”frag-no”>(2)</span>  The owner or occupier of a lot must ensure that the lot is not occupied by more persons than are allowed by law to occupy the lot.

The by-law seems reasonable to me. But I did not receive a reply to my query “what is the occupancy limit”? Surely owners/tenants need to know this in order to comply with the law.

Thanks again.

[TrulEConcerned]

Thanks for your reply.

I agree with your comment:

“In this case, the by-law is obviously intended to pass the cost of cleaning inaccessible windows to the owners corp”.

My question is:

When does a window become “inaccessible”?

For instance, if a window that was safely accessible to owners for years is now not so because an owner cannot access it, be it for age or health reasons, does that make it “inaccessible”?

Facts:

1. Today all windows are accessible;

2. Most units are on the first floor;

3. All units on the first floor renovated. The renovation was upwards and have installed attics with windows.

The only plausible explanation I can envisage for this by-law  is that while today all windows are accessible, those who have renovated and installed attic windows will in time not be accessible to the seniors who own them and hence their great enthusiasm for this by-law at the AGM.

Am I (living on the ground floor) wrong to worry about this?

 

[TrulEConcerned]

G’day Monty,

Here’s my 2c:

1. The advice given by JT and JonH is sound;

2. In my experience, going to NCAT is a lucky dip, regardless of the proof you have. It is best to be in a situation where you can avoid NCAT; and

3. I too had a fixture in a leased property that required care and listed it as a stand alone dot point in the lease mandating that only certain cleaners may be used to clean the fixture (as it was recently expensively repaired and fragile in parts) and that any damage during the tenancy – be it caused by the tenant’s disregard for her own consent to the dot point or say, by placing hard objects on it – would be recoverable from her. I spelled out the cost of the repairs which would be the sum I would sue for. The dot point (or “clause” as she called it) worked a treat, no damage to that item was done.

 

[Author]

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