[wombat]

The member acting as an adjudicator on the matter was a full time member not a senior member if that is any better.

Three meetings were being looked at by the adjudicator.

Two were invalidated because not enough notice was given.

The third was not invalidated because the proper notice was given and the meeting was conducted properly. I brought to the adjudicators attention that one the member (two unit scheme) was not financial.

Rather than decide that there was no quorum the adjudicator simply said that the votes of the unfinancial member could not be counted. So the adudicator was of the opinion the meeting had been validly conducted in accordance with the statute. The adjudicator did not order that the meeting be resumed because of the lack of a quorum.

There was no appeal of this decision.

I will take my current application to the CTTT and hope they see it my way on the day.

[wombat]

Thanks for the feedback. The education officer has been helpful as well. Both Billen Ben and the education officer have referred me to Horsley’s Meetings which I have taken a look at.

The “One meeting only” section of Chapter 13 describes the common law principal that disallows new proxies and disallows the payment of debts before the meeting is resumed.

However I do have doubts about the notion that an unfinancial member cannot form part of a quorum at the original meeting.

While the notion that an unfinancial member cannot form part of a quorum and the common law principles associated with adjournments are not strictly mutually exclusive it appears to me that the two cannot co-exist.

It appears to me that to adjourn a meeting where all the members are present because some are not financial serves no purpose at all because of the power of the common law principal described in Horsley’s.

I have been to the CTTT on one occassion to have a compulsory manager appointed and with one of the ancilliary orders the adjudicator dealt with the validity of a number of meetings that had been held while in self management.

Two meetings were invalidated because not enough notice was given.

With a third meeting the adjudicator did not say the meeting (it was the original meeting) was invalid or inquorate but she did say that the unfinancial owners votes could not count. Which turned the resolutions passed 180 degrees because in this 2 unit strata scheme the two owners were not in agreement. In this case the unfinancial member did not trigger the adjudicator to order the meeting invalid because of no quorum.

In the introduction of the Quorum chapter Horsley’s does mention that the number of a quorum does not have to equal that number of votes in the introduction of the Quorum chapter.

I dont know if this helps me undermine the notion that a unfinancial member cannot form part of a quorum.

I will need to take this matter to the CTTT at some point. Thats why I wont let it go. Sorry.

Happily digging

Wombat

[wombat]

I have another interesting point to make that is related to the notion of not permiting new proxies at an adjourned meeting. My point is in relation to the situation in a 2 lot scheme where one lot owner is not financial and is present at the original meeting.

The strata manager claims that the meeting has no quorum because one of the two lot owners present an the original meeting was not financial.

The strata manager also claims that the unfinancial member cannot pay the outstanding amounts in order to have their votes counted at the adjourned general meeting to be held at a later date for the same reason I cannot submit a new proxy. The managers reason is that the meeting is in fact the same meeting being continued at a later date.

My question is. What is the purpose of adjourning the original meeting due to a lack of a quorum because one of the owners present was unfinancial when the period of adjournment offers no opportunity to that owners to pay the outstanding moneys?

It seems to me that the combination of the notion of an unfinancial member not being able to form part of the quorum and the notion that the owner cannot rectify their finances during the adjournment period is contradictory and unjust.

The adjournment is necessary to move towards having the meeting that has loosened the quorum conditions.

It seems to me that the purpose of the adjournment is lost when the manager says nothing can change during the adjournment period.

[wombat]

For your reference see Section 3 of the Consumer, Trader and Tenancy Tribunal Act 2001 No 82 below

 

3   Objects of Act

The objects of this Act are as follows:

(a)  to establish a Consumer, Trader and Tenancy Tribunal to determine disputes in relation to matters over which it has jurisdiction,

(b)  to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair,

(c)  to enable proceedings to be determined in an informal, expeditious and inexpensive manner,

(d)  to ensure the quality and consistency of the Tribunal’s decision-making

[wombat]

Thanks Billen Ben. I reckon we've thrashed that topic.

On the subject consumer confidence in the CTTT my confidence has taken a beating a number of times but at others they have performed well.

I've had an adjudicators orders overturned by a Tribunal member where the member agreed that the adjudication was not a competent jurisdiction.

I've had a member of the office of the chairperson, wont say which one, meddling in matters that are not even within the jurisdiction of the CTTT.

I recall someone on this forum saying that the CTTT is not a “real” jurisdiction. I know from experience that they can be successfully held to account on jurisdictional matters and that are willing to hold themselves to account too.

Sadly one of my main critisisms of them is that they are a creature of statute but sometimes even fail to meet the objectives of the legislation that created them. And all they can do is apologise.

[wombat]

Is it possible to view the matter of SCS 10/34078 online. The matter that Billen Ben mentioned.

I am curious about the application of a proxy in my case.

As a proxy form must be kept on the oc records it may be the only way to have an owners vote recorded when that owner is refused their entitlement to vote at a general meeting due to the managers belief that they are not financial.

I say the “managers belief” that a person in not financial because I have found that the accounts kept by the manager often do not meet the requirements of the legislation for one reason or another. Accounts can be sucessfully disputed. I have done it with the $600.00 discount. see above.

If there is a risk that the acounts are disputable then the safest thing for all involved would be to record all the owners votes (financial and unfinancial). If this is not done then a critical moment in time at the general meeting may be lost forever. Clause 10(8) of Sch 2 can be applied retrospectively so nothing is lost by recording the votes of an unfinancial member.

A person is entitled to cast a vote when they have a interest in a lot. Having notified the owners corporation of that interest there is nothing in the SSMA to prevent an owner casting a vote and having it recorded.

For a chairperson of a general meeting to deny a person having their vote recorded would be risky especially when the accounts may be disputable.

[wombat]

The CTTT application that dealt with the missed $600.00 discount also dealt with 3 general meeting held while the lot owner was not financial.

Two of the general meetings were attended only by the unfinancial owner. The two meetings were adjourned because of a lack of a quorum but the unfinancial owner did not adjourn for the minimum 7 days. The CTTT said the meetings were invalid because they were not adjouned for the minimum 7 days.

The third general meeing that was attended by both owners on the notified date. No adjournment. The CTTT did not invalidate the third general meeting but said that the votes of the unfinancial owner could not be counted.

Here is a case were Clause 10(8) of Sch 2 has been applied retrospectively and where the validity of the meeting was left standing which would mean that the quorum was valid.

I understand that the CTTT adjudicator did not cast their mind to the specific issue of the quorum and that even if they had that that doesn't mean their “logic” would have made perfect sense.

If Clause 10(8) of Sch 2 had the weight that some give it wouldn't its retrospective application trigger a ripple effect where the unfinancial owners entitlement to vote would be removed which would have a flow on effect on the quorum and the validity of the meeting?

Remember this is a two lot scheme so the outcome of some of the resolutions at the general meeting have been turned 180 degrees. A fact that I have exploited in subsequent CTTT applications.

Despite this I am still uncertain about the true effect of Clause 10(8) of Sch 2 because of the changing mind of the CTTT and the legal consensus that says it has an effect on a persons voting entitlement.

I'm not one to take a legal consensus as gospel. A legal consensus is open to challenge. The lawyer that sucessfully challenges the legal consensus is well worth his salt. As for the rest they are just part of a nodding crowd.

[wombat]

Get too close to financial deadline at your peril. The financial deadline of a general meeting should be given a wide berth as should a discount date. 

A former strata manager gave a lot owner a 10% discount on levies even though they were not paid before the due date. i.e. by the discount date, the day before the due date.

According to the oc bank statement the lot owner had over $20,000.00 in arrears on the discount date. The lot owner attempted to pay the outstanding amount by a combination of EFT and bank cheque on the discount date to be eligible for the discount. The attempt failed despite the strata managers support that the amount was “paid” before the due date.

The amounts are brought to the oc bank account when they are received by the bank and this is when they have been paid. I would like to know the legislation that supports this. Can you help me with this Billen Ben?

Even a bank cheque needed to be cleared overnight before it hit the oc's bank account.

The discount missed by the lot owner was $600.00 on a $6,000.00 quarterly levy. So it hurt. It took an application to the CTTT to establish the lot owners ineligibility. The CTTT agreed in this case that the financial deadline had been breached.

The oc and strata manager parted ways soon after.

[wombat]

Correction

 

Section 118(1) of the Strata Schemes Management Act states that a person who has an interest in a lot that, subject to this Act, gives the person a right to cast a vote. That right to cast their vote is the entitlement that is the subject of Clause 10 of the Schedule 2…….The whole of Clause 10 not just Clause 10(8).

[wombat]

I really want you both to be wrong about this so I am going to try to persuade you.

 

Clause 10(8) of Schedule 2 of the Strata Schemes Management Act does not use the word entitled so it isn't determining who is and who isn't entitled to vote. It just states that the vote does not count unless payment has been made…

 

Clause 10(8) of Schedule 2 of the Strata Schemes Management Act does not prevent the vote being cast in the same way that Section 118(5) of the Strata Schemes Management Act does. Much stronger language is used in s118(5).

 

Clause 10(10) of Schedule 2 of the Strata Schemes Management Act refers to s118. It states “this clause does not confer a right to vote on a person deprived of the right by failing to comply with section 118”.

 

My argument is that if the authors of the SSMA intended Clause 10(8) of Schedule 2 to prevent a vote being cast or to remove an entitlement or right it would have been written in much the same way as s118(5) with much stronger language.

 

Section 118(1) of the Strata Schemes Management Act states that a person who has an interest in a lot that, subject to this Act, gives the person a right to cast a vote. That right to cast their vote is the entitlement that is the subject of Clause 10(8) of the Schedule 2.

 

Clause 36 of Schedule 2 of the Strata Schemes Management Act allows any owner entitled to vote to make a requisition for the inclusion of a motion on the agenda no matter whether they are financial or not. They would obviously have time to pay any amounts outstanding before the meeting so that the votes that they do cast are counted.

 

Clause 10(8) of Schedule 2 simply means (to me) that a vote that has been cast (while the person entitled to cast it is not financial) cannot be counted. The right to vote cannot be exercised to its finality by having it counted.

 

Clause 12 of Schedule 2 of the Strata Schemes Management Act makes no reference to whether a person entitled to vote is financial in determining a quorum.  In Clause 36 of Schedule 2 the secretary must respond even if the person is unfinancial.

 

Being unfinancial does not extinguish entitlement to vote and therefore has no effect on whether a person can form part of a quorum.

[Author]

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