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This is section 108(2)
Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.
It too is a pass a motion first section but as readers of this forum would know the failure to first pass the motion can mean nothing. The temporal component of such sections mean nothing anymore.
Is there a case where the Tribunal has dismissed a matter because there was no resolution first passed?
The issue is not whether the NTC is valid the issue was the SC did not follow the Act, a trigger for s 238, and yet the failure meant nothing. Such a failure is not dysfunction; it is just non compliance even though the section triggers on a “failed to comply with this Act”
Indeed the threshold is set high. It is the same as s 237 and requires serious dysfunction which is far removed from “failed to comply with the Act”.
Sometimes I wonder if NCAT members can read or if they just make it up as they go to suit themselves.
Some recent case law on s 238
93. In any event, the matters that are to be considered under s 238 of the SSMA are the matters set out in s 238 (2), being:
Failure to comply with the Act, the Regulations or the By-laws; or
Failure to exercise due care and skill, or engaging in serious and wilful misconduct.
94. Further, even if any of the matters set out in s 238 (2) are established, the applicant must additionally satisfy the Tribunal that the matters are of sufficient magnitude to justify exercising its discretion in favour of removing the strata committee member from office.
Linney v The Owners – Strata Plan No. 11669 [2021] NSWCATCD 123
AND
23. None of the allegations, even if proven, would support a finding that Mr **** has failed to exercise due care and diligence or engaged in serious misconduct whilst holding office.
Laws v The Owners – Strata Plan 97230 [2022] NSWCATCD 131
“Sufficient magnitude” and “serious misconduct”.
As far as I recall the section was introduced to deal with people who can’t follow the Act.