[TrulEConcerned]

Hi Jimmy,

My comments are in CAPITAL LETTERS in reply to your posting:
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,

THIS CLAUSE IS INCLUDED IN THE AGENDA, BUT NO MENTION IS MADE IF ANYONE IS UNFINANCIAL

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,

WHO DEFINES “KEY”. FOR ME THE CASH RCPTS JOURNAL IS “KEY”, BUT MAYBE NOT TO OTHERS. THE ACCOUNTS SENT TO OWNERS LIST ACTUAL EXPENSES BUT LIST ONLY LEVIES DUE, NOT RCVD. YOU WOULD AGREE THAT WHAT IS “DUE” IS IMMATERIAL. WHAT HAS BEEN PAID BY OWNERS OR “RCVD” BY THE STRATA IS IMPORTANT.

and

(h) a form of motion to decide how to deal with any overdue contributions payable to the owners corporation, THIS IS MENTIONED

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.

DOES THIS INCLUDE ALL STATEMENTS? I ASK BECAUSE IT WAS MADE CLEAR THAT SC MEMBERS RCV MORE DETAILED FINANCIAL REPORTS, AND ON A REGULAR BASIS, THAN THE RIFF RAFF LIKE ME WHO IS NOT ON THE SC. CAN I ASK FOR SAY THE CASH RCPTS JOURNAL AND THE LOT BALANCE JOURNAL (WHICH SHOULD HAVE ALL LOT OWNERS LISTED WITH THEIR PMT HISTORIES)?

(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.

PREVIOUSLY I RCVD ACCESS TO THE BOOKS AT A COST OF SOME $55

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.

[TrulEConcerned]

Thanks. for your replies. To clarify: the strata mgr provided a financial report that would be marked with an “F” if submitted by a first semester first year accounting student. The financial statement mentions: Levies Due – Admin and Levies Due – Capital. As you’ll agree, such numbers are meaningless. What owners need to know is how much of the levies were actually paid and not how much is due (which is what the SC has supplied).

[TrulEConcerned]

Hey Austman,

You write:
... that self representation at court level can both waste the court’s time and be a major disadvantage to the self representing party.

It’s because self representing parties tend to have both poor legal knowledge and a poor understanding of how the legal system works.  It puts them at a major disadvantage that can end up frustrating everyone involved.

I know the law as it relates to this matter. I don’t know the legal system, but it was straight forward on the day. Nobody pulled any rabbits out of any hat.
A barrister I met casually some time ago told me that against the neighbour, I had a (strong) claim in nuisance and (a lesser claim) in negligence (the neighbour breached By Law 1 as he robbed my tenants of their right to quiet enjoyment, that was the basis of the NCAT outcome).

What do you think a solicitor would have charged for a small claims (under $20k) matter at the LC?

Note: I spoke to barristers not solicitors about handling the matter and their fees did not make economic sense to me, especially if they lost the case but also if they won.

 

[TrulEConcerned]

Hey Kaindub,

Thanks for your feedback.

You write:
As you have taken your case to a court already and had a a ruling, you’ll need to find some compelling ground to have it reviewed in a higher court.

Are the following points “compelling”?

1. The magistrate found that the neighbour’s actions (in renovating) were reasonable whereas NCAT found the exact opposite, which is why NCAT allowed my tenants to vacate without paying the break fee or the rent until the end of the lease;
2. In its judgement, the Court included some of the evidence (provided by my tenants to NCAT) which I submitted, that serves to paint me in a poor light because the Court excluded from its publication my responses to the tenants’ claims (also submitted to the Court);
3. Soon after the NCAT hearing I asked for reasons (in writing) why the NCAT Member claimed the premises were “uninhabitable” but NCAT told me that such reasons are not offered when consent orders are handed down;
4. NCAT does not offer a transcript of proceedings and therefore I did not seek a transcript of the NCAT hearings to submit to the Court given the high cost for a transcription service;
5. Cases I read indicate that many times renovations are part of life and folk have to put up with it. But if NCAT argued that the noise was unreasonable, so much so that the tenants could vacate without liability, then how can the Court find the exact opposite?

Surely there is something unfair about a neighbour making hundreds of thousands of dollars profit in buying, renovating and flipping a property and a neighbour having to wear the cost of losing a tenant which would not have occurred but for the renovations causing my premises to become “uninhabitable”.

[TrulEConcerned]

I really hope you’re wrong, but on reflection you may be right. At the LC the defendant’s solicitor did not seem to make a case. This is after he turned up 40 mins late. All he said was that the neighbour had OC approval for the renovations. He did not dispute my tenants vacated early or that I was out of pocket for months on end.

Also I heard of a recent NCAT decision where tenants claimed noise from a neighbour caused their premises to be unlivable and so they vacated unilaterally. NCAT rejected the tenants’ application. But in my NCAT case (self represented) NCAT said the premises were uninhabitable. Again the counter-party (the tenants) had a lawyer (young, inexperienced and ill prepared), who won.

Prior to appealing the judgement, I suppose I need to weigh up

1. The chance of success;
2. The cost of hiring a lawyer; AND
3. The defendant’s likely legal bill in the event that my lawyer loses.

[TrulEConcerned]

Thanks.

[TrulEConcerned]

Good evening,

I rummaged through the SSMA and found sections relating to the OC Trust Account.

Mention is made of a strata agent having to explain transactions (as I seek from the agent), but s.58-61 refers to the OC asking for information and explanations. Not an individual proprietor.

Can the SC, in particular the Sec/Tsr (or managing agent) refuse my “pls explain” letter by arguing that I am not the OC?

And if so, how to I get around that? Note the Sec/Tsr has previously refused my requests, claiming they were not in the correct legal format. This was most commonly done when I sought some transparency in the reporting of the financial accounts.

 

[TrulEConcerned]

Hi Johnny,  until a few years ago all 6 lot owners were on the SC. But when some works had to be done ($80,000 or so) and I insisted on multiple quotes, not just the two offered by the Sec/Tsr, he  made a speech indicating he can’t work with me. He convinced three senior citizens (lot owners) to vote with him. And so he had 4 votes in the bag (him+3) before he even bothered with the 6th lot owner. He in effect removed me form the SC.

He also had an issue with me refusing he be paid for work he did on the OC property without ever seeking approval in advance. Yes Sir. He bought materials, did the work and asked for the money he said he was entitled to. No quotes from others were given in advance of the work being done. Heck, he did not even quote in advance. Having 3 others under his spell meant he KNEW he’d be paid even without seeking prior approval. I don’t know if the other owners are cowards or easily intimidated.

And to think years ago before we had a managing agent he mixed his money with the OC’s. Very, very  unsavoury behaviour, IMHO.

[TrulEConcerned]

Great. Thanks JT.

I shall keep y’all posted as news comes to hand.

[TrulEConcerned]

Sir Humphrey you excel in furnishing advice. In the finest traditions of the civil service, may I add.

I thank you very much. Your logic (including giving the SC 3 weeks to reply) coupled with JT’s recommendation that I take a non- aggressive line of questioning is surely the best way to go, when all things are considered i.e. I really do want the information I seek and I want to appear very reasonable to FT/NCAT if the matter ends up there.

One more thing

You mentioned when seeking  a reply from the SC, I should be reasonable and and give them time to meet and discuss my complaint/email. Just to elaborate on the make up of the SC: there are just 2 members: the Tsr/Sec (being the person who was paid at least one lot of $10,000) and the Chair (who has been and remains an unquestioning  rubber stamp). I think therefore the only thing (if anything) that changes from your advice is that I think 2 weeks should be enough time to get the Tsr/Sec (being the same person) to direct the agent to look at the records in his possession and to pony up a reply. Agree?

 

[TrulEConcerned]

Good evening gentlemen,

I just saw p2 of replies to my query. I missed it when I looked earlier.

Thank you JT and Sir Humphrey.

As I understand you, I should first put a “please explain” letter to a SC meeting.

Problems:

1. The Tsr/Sec eschews such meetings. He prefers to act in secret and that his views are rubbed stamped by the Chair without the glare of any non SC member querying his actions;

2. He never sends out agendas to non SC members;

3. He never sends out minutes of SC meetings to non SC members;

4. He has never asked non SC members to list items on the agenda of a SC meeting.

I may be wrong, but as I see it, my options are:

1. Send my “pls explain” letter to the managing agent and Tsr/Sec for listing at the next SCM. BUT, there may not be one for months or years. In fact I do not recall one being held in the last two years. So my letter may go yellow before it sees light of day at a SC meeting; OR

2. Send the “pls explain” letter to the agent and Tsr/Sec asking for a reply in 5 days to my queries. Note the agent (surely at the behest of the Tsr) advised me a couple of days ago that as he wasn’t the agent when the irregular transactions took place, he cannot explain them. Of course the Tsr/Sec who benefited at least once from an unauthorised payment from the OC’s a/c to him did not pony up an explanation as to that windfall nor about the other missing $10,000.

As I understand you two, the more specific my queries to the managing agent and Tsr/Sec, the better. If they don not reply or if they reply as they have to date ie most unsatisfactory, then I can seek mediation, with just cause.

True?

[TrulEConcerned]

I want to take the matter to Fair Trading where step #1 is MEDIATION.

Does anyone know how to frame such an application to Fair Trading? What should I include in the application? My queries? My suspicions? My desired results?

Any advice would be welcome.

[TrulEConcerned]

Sir Humphrey, our OC does not have the books audited because many years ago the then managing agent recommended an auditor and we agreed to an audit.

The auditor was unhappy with the dog-pile of papers he was given and “qualified” his report, stating he was not shown all the papers he expected to sight and could not attest to the veracity of what passed for the accounts.

I commented at the next meeting that having a qualified opinion is a poor show on the agent’s and SC’s part and that the OC should have a comprehensive audit, leaving no stone unturned. The managing agent and Tsr poo-poo’ed my idea and the Chair was unwilling or unable to voice an opinion. So nothing was done.

 

[TrulEConcerned]

Silly Cow, I think you missed my first memo. The SP lost at least $10,000 because after the Tsr wrongly paid $10,000 into the OC’s accounts, two lots of $10,000 were paid by the OC. The evidence shows one lot of $10,000 was paid to the Tsr. Who approved this pmt? Not the OC, that I know.

And another  $10,000 was withdrawn from the OC’s account with no explanation then or now as to who paid and why.

So, with respect Silly Cow, I am not “moving on” when I smell “irregularities”.

 

[TrulEConcerned]

Jimmy and Sir Humphrey,

I closely examined the papers I have and see that when the Tsr paid the $10,000, the OC was flush with funds. It was not a case of insufficient funds in the kitty that needed to be topped up.

[Author]

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