#27358
The Hood
Flatchatter
Chat-starter

    Thunderbirds are go.
    But ‘the Hood’ (a well know antagonist on the Thunderbird’s) might say to Lady Penelope:
    Motions submitted prior to Nov 30 2016 did not require an explanation and so it would be inappropriate to be retrospectively applying the new laws to those motions.

    The Hood might then deploy the Savings and Transitional Provisions of the 2015 Act by citing Cl 3 2(b).

    3   General savings

    (1)  Any act, matter or thing done or omitted to be done under a provision of the former Act and having any force or effect immediately before the commencement of a provision of this Act that replaces that provision is, on that commencement, taken to have been done or omitted to be done under the provision of this Act.

    (2)  This clause does not apply:

    (a)  to the extent that its application is inconsistent with any other provision of this Schedule or a provision of a regulation made under this Schedule, or

    (b)  to the extent that its application would be inappropriate in a particular case.

    Then the Hood might then say the above from Lady Penelope is all well and good but the explanation is only required in the requisition and there is no express requirement for it be on the agenda. This opinion is expressed in commentary by a well known strata lawyer from just north of the Shire.

    The Hood might then up the stakes and start citing case law.

    Rothman J in The Owners – Strata Plan No 62022 v  Sahade [2013] NSWSC 2002 at [27] said:

    “The terms of s 153 of the Act apply to irregularities going significantly beyond the requirements of the calling of the meeting. It would apply to a breach of standing orders or the rules of the conduct of the meeting itself: see Clauses 7-20 of Schedule 2.”

    Clause 14 relevantly says:

    “The chairperson at a general meeting of an owners corporation may rule a motion out of order if (emphasis added):

        (a) the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws or would otherwise be unlawful or unenforceable, or …”

    The Hood would then say:
    I think, therefore, if a chairperson ought not to have ruled a motion out of order then the exercise his or her discretion to rule a motion out of order had no basis. In the alternative had the Chair ought to have ruled a motion out of order and did not then their discretion miscarried.

    Discretion cannot be wielded willy-nilly. There is the need to establish the jurisdictional fact – i.e. ‘the Chairperson considers’ requires coming to a state of mind. Therefore there needs to be some facts to support the exersize of the discretion. If the Chair’s considerations are not logical, reasonable and have some basis in fact , even ‘fact’ via probative evidence, then the Chair heads down the road towards Wednesbury unreasonable.

    Is Lady Penelope saying that for both questions the answer to no explanation being fatal is purely at the discretion of the Chair?