[Wirihana]

Thanks for the clarification on the committee eligibility Jimmy.  The section of legislation that you have included has an interesting implication for our strata plan where two co-owners are on the committee on the basis that they own two lots.

Although section 4 states that “only one co-owner of the same lot may be a member of a strata committee at the same time, except as provided by subsection (5)”, it is not really clear whether this still applies if two co-owners own two lots.

And where it says “except as provided by subsection (5)”  how could this change the eligibility?

Subsection (5) refers to multiple nominations, not multiple positions on the committee.   “An owner of more than one lot in the strata scheme may nominate one person for election as a member of the strata committee for each lot for which the person is an owner”.  Does that necessarily over-ride section 4?

If, for example, there was a strata plan of six lots where I own two, two co-owners own two and two others own one each.  The two co-owners could have control on a committee of three (which was them and me), even though I own as many lots as they do. I suspect that this is what the legislation was intending to avoid.

Do you think both co-owners can be on a committee in this situation?

[Wirihana]

Thanks for an excellent story here Jimmy, a daunting situation

But there was one point you raised that I wanted to ask you about – you said ” Firstly, candidates for election can’t be nominated by people who are standing themselves”

I was unaware of this – can you refer me to legislation on this point?

Many thanks

 

 

 

[Wirihana]

Hey Jimmy I wasn’t being sarcastic, just frisky!

However I detect a hint of fulmination in your response so let me reiterate a few points.

 

When I said “an EC can ONLY convene an EGM by holding a properly convened EC meeting“, I was referring to clause 31 (2), not 31 (3). 

I thought I had made that clear in the use of words “an EC“.

You previously suggested that a strata manager could adopt this function and quoted strataman as reinforcement.

The legislation makes no provision for decision-making at casual EC meetings or over the phone so clause 31 (2) means a proper meeting must be held.

 

And yes you are right, decisions at an unlawfully convened general meeting could stand unless the outcome would have been different at the same meeting, had it been lawfully convened.

In this matter I had the option of having the meeting invalidated, because I thought the vote may have been different and an agenda item was missing, but I chose not to pursue that path. 

 

As for your cynical disparagement of a Fair Trading expert, I imagine that I would do the same with a paid opinion to the contrary from an expert in a top law firm, if it was not what I wanted to hear. 

The expert I met did cite legislation and quoted from regulations but I did not reproduce all details in my previous post for the sake of brevity.

In fact I called the Fair Trading help line three times and was given the same advice each time. This was then confirmed by the senior officer who I met in person.  She also added that the “first meeting” definition was frequently a point of contention and was another good reason for the legislation to be changed. At which point will you believe our public servants one wonders? 

 

As for the proxies, an adjourned meeting is still a meeting in its own right is it not? There is no definition to the contrary! As I mentioned previously, if I used your definition of first meeting the process is unwieldy to the point of ridiculousness. To make sure my vote was registered I would have to provide a proxy before the first meeting in case it was adjourned, even if I turned up.  Then I would have to cancel it if I did turn up, so then how would it apply at the adjourned meeting? Can you reinstate a cancelled proxy at an adjournment?  That would appear to be a new proxy would it not? And not applicable any more as it is not the “first meeting” (using your definition) where it was cancelled? 

 

And I am not sure what you mean when you say “then didn’t bother to have them updated for the second meeting”.  Are you suggesting that the adjourned meeting is a second meeting?  And if so how would you update the proxy which only applied to the first meeting?  If it is just the date that matters then any date before the first or adjourned meeting should suffice.

At the meeting that I disputed, the proxies were presented within the correct time frame with correct dates for the adjourned meeting but were still refused.

 

PS why didn’t you dance at your wedding? 

[Wirihana]

It’s been a while, but since I last wrote on this topic I have had the opportunity to consult with a Fair Trading legal and technical expert, and I can now clarify a few points mentioned in previous postings:

 

1.  An EC can ONLY convene an EGM by holding a properly convened EC meeting with agenda, vote and minutes.  A telephone or email vote or an informal meeting is not permitted. 

2. This function can NOT be delegated to a strata manager (despite what your beloved Strataman says, sorry Jimmy!)

3.  A general meeting can be invalidated and ordered to be re-held if it is not convened properly, but this would only happen if the outcome of the meeting may have been different had it been convened correctly.

4.  The legislation does not have a definition of the “first meeting” when it comes to proxies but Fair Trading takes the view that participation is more important than exclusion, so if proxies are delivered within the required time period before an adjourned meeting, that meeting should be considered the “first meeting” and they should be accepted. 

5.  An EGM adjourned due to lack of quorum must be at least seven days after the first meeting, irrespective of the requirement in Part 2 Div 1 clause 13 2b which says that “notice of that time and place must be served … at least 1 day prior to the meeting”.

As for my dog’s legs, advice on calling an EGM with owner’s support is gratefully acknowledged, but in a large scheme like this, and as a new resident, I don’t actually know most of the people who were at the EGM and voted in favour of allowing larger dogs, and it would be difficult to track them all down.

The good news is that the EC has agreed to revisit the bylaw, survey resident views and take submissions on how it might best be changed.  One would hope that common sense will prevail, I’ll let you know! 

 

 

[Wirihana]

JimmyT said:  I’m no lawyer but I would take those two statements to mean that proxy votes for an adjourned meeting have to be valid for the original meeting.

So that means that if I can attend the original meeting but am unable to attend the adjourned meeting I am unable to use a proxy at the adjourned meeting. How would anyone know that the meeting is to be adjourned? Should everyone attending a meeting file a proxy at the first meeting in case it is adjourned? Doesn’t sound right to me.

As for EGMs being held “when there is a majority vote of the Executive Committee for the holding of an EGM”, call me pedantic but how can you have a majority vote without a meeting?  Is a chat in the corner of a pub sufficient?

 

[Wirihana]

Yes Jimmy, it is a large scheme and I am unable to find anything in the legislation that only permits proxies to be presented to the original meeting and not to the adjourned meeting. 

To clarify, the motion struck out and the motion allowed were the same but against different offenders.  The one against me was struck out because I removed the dog from the property, though I want to bring him back when lawful to do so.  

The reason I thought that the meeting could be declared invalid was because it was not called by a formally convened executive committee meeting.  I understood this to be necessary and a function that cannot be delegated to the strata manager (Mgt Act Schedule 2 31 (2)).

Is anyone able to give a definitive answer on these points?

[Wirihana]

Once again many thanks for postings, Whale and Kangaroo.

Kangaroo, in response to your comment about being “undiligent in complying with the spirit of the By-Law” I can only say that I felt that I was complying with the “spirit” of the by-law.

I made my own strata inspection before purchase and did not find any documentation indicating enforcement of any parts of the pet by-law. 

I found an application for a dog larger than permitted that had not been refused (or had no refusal notice filed). 

When I visited the property I saw dogs of various sizes off-leash and playing in the grounds, cats roaming freely, and a rabbit.  

From that I understood the community to be pet-friendly, generally tolerant and having a sensible and casual attitude to the letter of the law. 

I had no intention of offending anyone, but find it difficult to understand how anyone could be offended by a large dog and not a small one.

I consider myself a respectable and law-abiding citizen. 

The special by-law replaced one that was similar but included a definition of “small”, removed the bit about unreasonable refusal and added the parts about indemnity and noise, so I doubt that there was a lot of discussion on it before it was passed.

Having said that, you pre-empted my actions. 

At considerable imposition to all concerned, I made arrangements to keep my dog away from the property. 

I also submitted a general meeting agenda item to change the existing by-law, stating that it is unreasonable and unworkable and that it should be replaced with the standard by-law option A.

This is where the story becomes a bit more complicated.

The general meeting was called without an EC meeting to convene it (or 25% of owners calling for it).  In fact the EC has not had any meetings since it was elected at the AGM in October.

My agenda item for by-law change was submitted a day after the meeting notice was issued so it was not included.

The motion calling for me to be served with a “notice to comply” was struck out.

That left the focus on Labrador Lady. 

She collected a good number of proxies from supporters but submitted them less than 24 hours before the meeting, so they were refused. 

Due to lack of quorum the meeting was adjourned for six days (I thought it had to be seven? Plus four days for postal notification?)

When she resubmitted them (24 hours before) the adjourned meeting, together with some new ones, they were still refused on the grounds that they had to be submitted to the original meeting and not an adjournment.

The meeting was a dog’s breakfast.  Any discussion or questions on the by-law itself, or enforcement of it, were shouted down as being irrelevant and that the motion was about a breach.  The chairman made no effort to call the meeting to order.  I discovered that people who don’t like dogs are very Vehement about it.

When I asked if the EC thought they should have the occasional meeting I was told that they were far too busy managing a large property to have meetings “all the time”.

The vote was not counted and the motion declared resolved on a show of hands.  I reckon that if the proxies had not been refused it may have been defeated.  The treasurer asked the chairman the same question.  I could not hear his reply so I asked him to repeat it.  He refused and declared the meeting closed.

So where to from here?  Presumably I can call for mediation and adjudication to have the meeting declared invalid, as it was not correctly convened, and all decisions overturned? 

Would I be able to include mediation about the breach notice issued to me included at the same time?

Or would I have to bring the dog back and wait for the process to start again?

I would like to test the validity of the by-law as a point of interest and principle but have been advised that there are no set precedents and that matters are decided on a case-by-case basis.  Is this correct?

All comments advice and psychic power will be much appreciated.

[Wirihana]

Whale said 

It’s a well accepted principle that a Plan’s (Special) By-Laws cannot be harsh or oppressive, and that any relating to the keeping of animals cannot unreasonably withhold consent.

Wow Whale, that is the best news I had since this whole sorry saga started!  

Yes, my application was in writing and I have already requested again that it be forwarded to the executive committee and considered by the EC in a properly convened meeting, and yes I live in NSW.  So far, so good. But there is a general meeting this week to vote on the “evictions”, I’ll be back here after that for sure.  

 

[Wirihana]

Thanks for your postings again guys, Whale, I would consider one or two days a week a casual visiting basis as opposed to residency. 

And I did advise the OC about it, in fact I requested permission a week before I moved in, via the strata manager, who did not pass the request on.  In the absence of any reply I assumed that the notification was received and consent granted – it was in keeping with the lack of strict enforcement of all other aspects of the bylaw.  So it was a shock to receive the breach notice so much later. 

And the eviction I mentioned was of a dog, not a tenant. The owner is facing having to sell her apartment and move after twelve months, despite no objection having being raised about her Labrador in all that time.

[Wirihana]

Huge thanks to everyone for your advice, it’s really appreciated.

 

Kiwipaul, the by-law in full is set out below but how do I find out what the definition of a “visitor” is?  It’s not mentioned here!

 

And Whale, when you say “keep means to have on your lot or common property”, who defines this?  Doesn’t keep mean some kind of ongoing permanence in normal English vernacular?  Is it different in strata law?

 

Excathedra, no chance of stir crazy here – he’s an older very good natured, well behaved and sedate dog, he gets walked three times a day and spends the rest of his time sleeping.

 

Jimmy, I tried your tactic and have been issued with a breach of by-law notice.  But only after we have been in residence for four months.  Another resident got an eviction notice at the same time after being there a year!  But the crackdown is only selective, cats are allowed to roam free at night and nobody is required to carry their dog – in fact just the opposite, a notice was put on entrances asking owners to keep their dogs on leashes.  Is this type of discrimination in selective enforcement legal?  And as the objection is so late does that not mean that consent can have been assumed? How does an adjudicator view a situation like this?

 

ok here’s the by-law, basically the standard type-B one badly tweaked but without the unreasonable refusal bit at the end. Note that it has no approval process required and animals can only be evicted if they are noisy!

A Interpretation and Definition

 (1)     In this by-law words defined in the Strata Schemes Management Act 1996 have the meaning given to them in that Act

(2)     In this by-law the term “small dog” means a dog that is less than 350 mm tall at shoulder height 

B Terms 

1.  Subject to section 49 (4) of the Strata Schemes management Act 1996 and the terms of this by-law an owner or occupier of a lot shall not keep nor cause nor permit the keeping of any animal (except a cat, a small dog, a small caged bird or fish kept in a secure aquarium) within a lot or the common property.

    

2. If an owner or occupier of a lot keeps an animal on the lot then the owner or occupier must:

    

   1. (a)     notify the owners corporation in writing that an animal is being kept on the lot

   2. (b)     in the case of an occupier of a lot who is not the owner of the lot, provide evidence of the consent of the owner of the lot to the keeping of an animal on the lot

   3. (c)      keep the animal within the lot

   4. (d)     carry the animal when it is on the common property

   5. (e)     repair any damage of the common property caused by the animal

   6. (f) keep the animal indoors between 10pm and 7am

   7. (g)     take such action as is necessary to prevent the animal from becoming a noise nuisance (and in this regard the EC shall be solely responsible to determine what constitutes a noise nuisance) and

   8. (h)     take such action as may be necessary to clean all areas of the lot or the common property that are soiled by the animal

       

3. An owner or occupier of a lot who keeps an animal on his lot must indemnify the OC and the owners and occupiers of other lots against any liability or expense that would not have been incurred if the animal had not been kept

    

4. If an owner or occupier of a lot fails to comply with any of the terms of this by-law or keeps an animal in contravention of the terms of this by-law:

    

   1. (a)     the EC may serve written notice requiring the onwer or occupier to remove the animal from the strata scheme on terms set out in such notice and

   2. (b)     the owner or occupier in receipt of written notice from the EC shall comply

 

 

 

 

 

 

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