I would suggest if you have any real issue with any decision seek an interim order to restrain the OC from relying on any decision from the SC meeting of ….
A lack of notice.
Notice is required by cl 5 of Sch 2 (NSW) so the question becomes what is the consequence for failure.
5 Notice of meetings for other strata schemes
(1) The secretary of the owners corporation of a strata scheme that is not a large strata scheme must give notice of a meeting to each other member of the strata committee at least 3 days before the meeting and to each owner.
(2) Notice is to be given by displaying the notice on the notice board maintained by the owners corporation or in accordance with section 263.
The key to 5(1) is what does ‘must’ mean and what happens when the OC doesn’t ‘must’.
Welcome to the absolute nightmare world of the NSW court system and their making it up as they go view of what ‘must’ means.
Must appears over 250 times in the SSM Act and you can never know what any particular must means until some Court, typically the NSWCA, says what any particular must means.
We have the must of s 106 which is a mandatory strict obligatory must.
This type of must:
‘Must’ means ‘must’. It is an imperative – expressing necessity, obligation and compulsion. There is no halfway house; no reason for attempting to ameliorate the outcome because of the particular consequences … J Pembroke (Bakkante)
But then we have cases like Sher Global where just about every ‘must’ in what is now Sch 1 relating to general meetings was considered procedural and there was no consequence for failing those musts.
Then we get cracks like that in The Owners – Strata Plan No 62022 v Sahade [2014] NSWSC 3 that talk about how, for a general meeting, no notice “adversely affected that person” and strict compliance is required with the provision is required.
28. Moreover, it is difficult, if not impossible, to imagine a circumstance where a person was provided no or inadequate notice of the meeting, yet it could be said that the failure “did not adversely affect” that person, except in circumstances where the person attended the meeting notwithstanding and waived the notice provision. I note, at this juncture, that paragraphs (a) and (b) of s 153(2) of the Act must each be satisfied in order for an adjudicator to refuse to make an order invalidating the resolution or the election. Thus, the legislative presumption, with a limited exception, is that non-compliance with any provisions of the Act dealing with the conduct of a meeting will result in an order invalidating any resolution or election held.
It’s a dog’s breakfast the consequence of not giving notice.
My favorite argument for no notice of a SC meeting flows from Sch 2 cl 9(3) – the veto clause.
(3) Decisions to have no effect if opposed by more than specified owners
A decision of a strata committee has no force or effect if, before the decision is made, notice is given to the secretary of the owners corporation by one or more owners, the sum of whose unit entitlements exceeds one-third of the aggregate unit entitlement, that the making of the decision is opposed by those owners.
I like to say a SC only has authority in the absence of veto because that is the effect of Cl 2 9(3).
There can be no greater disenfranchising of the owners than to give them no opportunity to veto.
Clause 9(3) might as well not exist if it is OK to give no notice.
Probably no notice of a SC meeting is best explained in:
Owners Corporation SP 67631 v Waters & Gardner [2010] NSWCTTT 343 at [19]:
“[19] … There was consequently no opportunity for each of the lot owners to make an objection at the executive committee meeting to the proposed course of action.”
In other words, all lot owners (including the applicant) were denied entitlements which they “possessed according to the Act and that must be an adverse effect” (Pamela Williamson v Owners Corporation Strata Plan 7348 [2015] NSWCATCD 65 at [39]).
I would suggest using that in any NCAT application.
Totally disenfranchising the owners, if that doesn’t warrant invalidation then we all in trouble.