[TrulEConcerned]

@Jimmy – Thank you for your reply. Very good idea about the motion. I’ll do that.

@Sir Humphrey –  I cannot say why the SM is reluctant but wonder if the fact that he is part of a large franchise and either does not know the law or it’s the franchisor’s policy he is following where a poll votes on matters like the appointment of the SM (a franchisee) which revealed some dissent to the appointment (or other issues) would look bad if FT ever investigates the franchisor or franchisee. Of if the franchisor looked over the books of the franchisee.

This is why I asked for poll voting to be the standard, without the need to ask for this again at every meeting.

As mentioned, the meeting mentioned has nothing controversial and I am sure all will vote the same way or not vote.

Thanks both for your replies.

 

[TrulEConcerned]

Jimmy what you say is true: a lot owner who wins does not have to share in the cost of legal fees of the OC (s. 104)

But:

1. A lot owner, after winning, may, like I experienced may have > 2 years of fighting to get the SM to remove the unlawful charge to his lot for a share of the legal fees. Only when I threatened to return to NCAT for an order on the breach of s. 104 did the SM finally relent and removed the charge from my lot. The OC was cunning in those years. It added the unjust share of the legal fees to my a/c but never declared me “unfinancial” even though I never paid those unjust amounts;

2. A lot owner may be reluctant to take the OC to NCAT and say spend say $8,000 on a case when there is no certainty of winning (there never is); and

3. Depending on the nature of the case, an OC could claim its legal fees on its insurance to defend the matter and  in such a case that would not result in a special levy. It instead would result in an email by the OC which could be construed by some as a threat by the OC along the lines of “the OC has been dragged into NCAT and will claim on its insurance policy for legal expenses. The policy’s ceiling  on such an item is $20k”.

[TrulEConcerned]

@ Sir Humphrey

I no longer try to discern why this SM acts the way he does. Does he not know the SSM Act? Is it too hard for him to complete the slightly extra work (for which he is handsomely paid) to record votes by unit entitlements? There are only a dozen lots in the building and all but one have the same u/e. One would not even need a laptop. The back of a postage stamp would offer enough space for calculations in this case.

My worry extends beyond just his ignoring of this request.

If he can ignore requests or instructions from the SC regularly and escape penalties, then what is the point of the SSM Act? What is the point of Fair Trading if it isn’t there to protect consumers?

[TrulEConcerned]

@Kaindub

Thanks for your feedback.

I am not surprised that there are no penalties for unlawful acts by SMs. I can only assume the SM industry wrote the regulations under which the industry is “regulated”.

In reply to your feedback, please note that this is the second time I asked and the second time I was refused a poll vote.
The first time was a year or so ago when the SM was hired, without the then SC explaining (by email as I asked) why they wanted a particular SM to replace the exiting SM.

Last year I asked for an explanation by email because the General Meeting was done by pre-polling. There was no in-person General Meeting of the OC, so there was no Q&A for such an important decision by the SC on behalf of the OC. With proxies in hand, the SC’s decision was the majority decision of owners.No explanation by email or otherwise was provided.
At the time I was just a member of the OC.

At the following AGM, 6 mths later, I asked the SM again how each lot voted and finally was told who voted which way. I was verbally told, the SM put nothing in writing. I concluded that the SM did not want the minutes to reveal even one dissenting voice to their appointment. (I did not like what I saw in the management contract).

Now I am the Secretary.
And the forthcoming General Meeting I referred to in the post is also to be conducted by pre-poll and not in-person.
I would have thought that as Secretary (with no opposition from other SC members) that if I want a poll vote at the upcoming meeting and all meetings from here on, then the SM must comply and if not then he is acting unlawfully in denying me that. If, as you wrote, that offence is not penalised, is it enough to get NCAT to sack him?

You wrote

If its like most strata managers, the minutes will only say passed or defeated, with no indication of the voting pattern.

I agree that most SM work that way. But our previous SM would if asked – and a few owners always asked – list how each lot voted. Sometimes SC members asked and at times non members of the SC, including me asked. That SM – who I had some problems with – on the issue of recording votes, was fully transparent and compliant with requests by owners.

 

[TrulEConcerned]

@ The Hood

I recall the case you mention and agree with your interpretation.

@Kaindub you wrote

If I was on this committee, I would limit the people who have access to the legal documents to those who are running the case. Usually one or two people are elected to speak with the lawyers.

What you do not want is an associate of the aggrieved lot owner to access legally privileged documents and pass that to the aggrieved owner.

I see your point, but doubt you have any lawful right to deny anyone not involved in the legal proceedings from accessing the documents. Unless, possibly, if those who you denied are not helping foot the OC’s legal bills.

[TrulEConcerned]

Your issues is complex. There are problems with the strata manager; the contractors and the strata committee.

You could be overwhelmed by all the alleged wrong doings, so break up the issues into parts.

Let me at this point focus on just one aspect.

Part 1 – poor behaviour by strata manager.

List what you consider are reasonable requests for information you sought from him, but were denied. Also list EVERY SINGLE INSTANCE where you feel he lied, misled or deceived you.

Then call Fair Trading 13 32 20 and choose the option relating to property professionals (or real estate agents). If you select the wrong option, when the call is answered, ask to be transferred to the section relating to property managers, in particular stratas.

Tell whoever answers that you believe the strata manager is acting in a manner contrary to what is demanded of him by the Act under which he is licensed: Property & Stock Agents Act. That act lists requirements with which he MUST comply.

Ask FT how to lodge a complaint and you’ll be directed to the website.

Lodge the complaint online. It’s free.

If your complaint is clear and you have evidence to back it up, FT will investigate.

Before they do so they will (a) email you a confirmation that your complaint was rcvd and (b) 7-10 days after you file the complaint they will call you to discuss before telephoning the agent and rattling his cage.

Don’t tell the agent of the committee that you filed a complaint. Let it be a surprise!

 

[TrulEConcerned]

@sealion I am glad I helped. When filing a complaint  remember to separately list every instance of poor, misleading  or plain dishonest behaviour by the SM. It is not mandatory, but it helps if you can show a pattern of bad behaviour.

Let us know how you go and return to this venue in case you get stuck. That’s what the forumsters are here for.

 

 

[TrulEConcerned]

Jimmy, I agree, SM mostly do what they can to please the SC and one owner is not the SM’s priority.

Maybe my point was not clear: in addition to the above point, when a SM or SC want evade responsibility or evade taking action they will often ignore complaints from owners or interpret the complaint to their liking. This often leaves an owner not aware of the ins and outs of the law left high and dry.

The SM and OC know that if the owner ever takes the matter to FT, it’ll be many months before either will have to account for their inactivity on the matter.

 

[TrulEConcerned]

Further to @Quirky’s comment that

As I understand it (and this is still and area I am very hazy about), paying money to the OC’s account will trigger tax provisions about this money being “non-mutual income”, which the Tax Office regards as money that reduces all lot owners’ levies, divided according to their unit entitlements. So all the owners should declare this non-mutual income in their personal tax returns each year

Based on my experience helping out a senior citizen with her strata matters, I wish to confirm that he is correct.

Money received by an OC from the leasing of common property is considered as “income” to the strata scheme and is apportioned by unit entitlement (in theory but not actual) to lot owners who have the obligation to list their portion of the proceeds received by the strata as income in their tax return at ITEM 24 (other income).

The relevant ATO word on the matter is tax ruling TR 2015/3.

 

[TrulEConcerned]

Good evening Deyana,

I cannot speak for what happens in the ACT, but in NSW I have seen similar situations where an owner has a grievance and wanted a motion – presumably prepared by the strata mgr – to address the grievance be listed for a general meeting.

I recall one cunning SC member acknowledging a similar email from an owner weeks before a meeting, but not acting at the meeting in the manner the owner expected. In fact not acting as any reasonable person would expect.

The reason was, it was said: is that owners have the right to provide motions to be listed on the agenda for a meeting, but the owner in question failed to provide a motion. The strata manager and SC claimed they expected a motion to be provided by the owner in the stipulated time and such a motion would be listed for a general meeting and the circular would also be attached to the agenda.

Of course everyone knew what the owner meant by his request weeks earlier. He is not steeped in strata intricacies and expected the strata mgr or strata committee to help him by drafting the motion.

The SC/OC/strata mgr at the general meeting by merely discussing the issue broadly but not proposing a motion in aid of the owner was from my perspective a demonstration of very poor conduct, but not unlawful. It did not breach the relevant acts. While I had several criticisms of that SC, on this issue I can’t claim they clearly breached any act or regulation. Other than common decency.

Assuming your correspondence on the motions was with the strata mgr,  complain to your version of Fair Trading and ask what regulations cover the conduct of  strata managers?

If that regulation or act mentions a requirement for a strata mgr to act “in good faith” or “honestly”, you could file a complaint with FT that the strata mgr failed to comply with what is required of him. Note, a complaint against the strata manager is different from a complaint against the OC. Of course there is nothing stopping you complaining also about the OC’s behaviour.

The strata mgr should have made clear to you that it is you that needs to provide a motion and he could have given you some guidance. Instead, by his actions in not spelling out the process and not pointing out what you need to do, he misled you.

You were made to understand that a motion would be listed and the inference was that either he or a committee member would write it.

Mention in your filing what loss you suffered.

 

 

 

 

[TrulEConcerned]

@Quirky –  thanks again for your detailed response. Below are a few questions (in italics) and comments.

1. You wrote “You should expect …..a report that a wall removal (say) is not structural, by a suitable expert”.  I understand that you mean the renovator will have to pony up documentation from an “expert”, presumably a structural engineer or architect.

That makes sense.

What I need to know is if the SC/OC just takes that report at face value or does the SC/OC hire an expert of its own to scrutinise the renovator’s “expert” report?

2. As to the by-law, the renovator, after much consideration, decided to use the OC’s lawyer to write it;

3. There is already a by-law passed a few years ago specific to another lot’s renovation. I was not on the SC then, but recall the issue was just waved through. No discussion took place at the general meeting. Who knows if it complied with council’s building (or any other) regulations?

4. As to a general meeting in which to list the by-law for a vote, the proposed renovator is happy to wait until the next AGM to list it. Presumably he will not be charged for the meeting in that case. True?

5. You wrote, in respect of common property, that SC/OC ” should stick to ensuring the common property of the building is not adversely affected by the renovation, but to do so, they can reasonably ask for reports from experts to ensure this“. The proposed renovator indicated he will provide such a report. What I want to know is whether a report from the renovator’s expert outlining what, if any part of the common property, will be impacted upon negatively, is that all the SC/OC needs to assure itself that is indeed the case?

Thanks again.

[TrulEConcerned]

@Quirky Thanks for the detailed reply. As it’s late at night now, I will read it in detail tomorrow and get back to you with questions. What I wish to say  now is that the renovation is very much a MAJOR renovation and involves STRUCTURAL changes.

Just to clarify, I am not the renovator in this situation. I am on the SC.

[TrulEConcerned]

@sealion Writing as someone who complained to NSW FT about a strata manager, and was successful in having him resign as SM, please note the SSM Act is not the address for grievances. The correct address is the Property and Stock Agents Act 2002.

Give NSW FT a call on 13 32 20 asking how to file a complaint online about the SM’s conduct as you believe he is not complying with the conditions of his license as per the Property and Stock Agents Act 2002.

As an aside, your post was unclear. If you already filed a complaint under the above act, (which is hard for me to determine), call FT and ignore anything to do with stratas when you hear the options. Select “property or real estate professionals” or similar and talk through you  situation with the officer that takes the call. Ask him/her what evidence from you is required etc. I found that unit of NSW FT to be on the whole pretty good, given the straight jacket in which they work. Note they cannot give legal advice but can hint at what they find to be “non compliant” and what you need to make that case.

Oh and so yourself a favour: do NOT give the SM a heads up of what you’re doing.

Separately and simultaneously, you can complain to NSW FT seeking to invalidate the resolution. To do this you need to apply online for mediation b/w you and the OC on the issue. You cannot waltz down to NCAT without first having attempted mediation. Note the OC may not turn up to mediation. No problem. You attempted it and that’s all you need in order to go to NCAT.

Make sure when you talk to NSW FT for guidance on mediation that you clarify that the resolution that you oppose was passed and is listed in what effectively are DRAFT minutes. They are the true minutes only after they are confirmed at the next general meeting (it need not be an AGM). I mention this in case such a distinction is critical for the purposes of invalidation.

Good luck.

 

[TrulEConcerned]

@nugalbags, thanks for the response. In the scheme involved, there have been several strata managers in a few years. And I agree that some records may have disappeared in the handover.

The problem however is that before the first SM was hired, one committee member ran the scheme mostly on his own (with 2 others who did very little) and it seems that he did not pass all the records to the first SM. This I know because I visited the offices of the first SM, soon after he was hired and most bank statements and some invoices were missing. While I have never been a fan of SM, I could not blame the first SM for the missing documents. I can only blame the trio on the SC who ran the scheme and chose either to keep or trash key records.

I actually visited the 2nd SM just before the handover to the 3rd SM.

All the files were in a large sac and I had access to them. The same missing papers listed above were still missing.

[TrulEConcerned]

I agree with much of the above. It is highly unlikely that a by-law exists that restricts your communication. If you want to defend your position – that is not comply with a NTC – as Jimmy recommends, get a lawyer. Follow Jimmy’s suggestion and get a quote from the lawyers. In your email to them summarise your issue and the responses you received from the SC and strata manager.

From my experience at NCAT, if the OC takes an owner to NCAT, it is likely that NCAT will grant an owner’s leave to be represented by a lawyer (i.e you request permission to have a lawyer represent you). You must request permission to be represented, if you want to be represented. It is not assumed by NCAT that you will be represented.

After all, you could inform NCAT in your request – as the defendant – that you are at a significant disadvantage  given the OC has a raft of members who together will prepare their case with the assistance of  the strata mgr and the OC can also make use of the strata’s lawyer if they choose to represent them at NCAT.

While NCAT in publications gives the impression that it prefers that no party is represented, I found the opposite. Especially when the defendant, be it an owner or the OC asks for leave to be represented in a complex case.

With reference to lot owners bombarding you when on the SC or other committee members with chronic emails, please note that in my experience on several strata schemes, I discovered that the SC  is under no obligation to reply to owners emails.  I am not stating that behaviour  such as that by SCs is acceptable,  I am saying that such an attitude by SCs is widespread.

One SC even wrote to all owners indicating that any communication that the SC deems “rude, intolerant, unjust etc” will not be replied to at all. This of course allowed the SC to define those terms and hence, ignore countless emails.

 

 

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