› Flat Chat Strata Forum › Living in strata › EC Members Expand By-Laws without approval › Current Page
Winston – you’ve raised a few issues so I’ll try to respond to those individually.
Regarding the By-Laws – irrespective of whether those are the “model by-laws” provided in the Schedules to the NSW Strata Schemes Management Act, or to the Regulation, or prepared by a lawyer, they almost always lack punctuation and are full of legalese. So some Owners Corporations do what ours has done by producing some explanatory notes to each By-Law, that don’t form part of those but rather seek to explain how they’re to be applied at the Scheme. Any notes or additions that seek to do anything else or which are written into the By-Law itself other than by a registered amendment would have no legal standing, and would very likely lead to confusion if a resultant Notice-To-Comply needed to be enforced by Mediation or by the Tribunal.
Regarding so-called “code of conduct” – as the By-Laws of a Residential Scheme a primarily aimed at its Residents, it’s not appropriate for those to include a code-of-conduct (C of C) that’s applicable only to elected members of its Executive Committee (E/C). That’s not so say that such a document is a bad idea and in fact one has been written in to the ACT’s Strata Legislation (see here), but like all others compliance with it is largely based on subjective criteria and terminology. In your case it’s not possible for a member to be compelled to sign-up to a C of C, or to be removed from the E/C if they refuse to do so unless that decision is taken by way of a special resolution at a General Meeting of the Owners Corporation.
Finally with regard to General Meetings being held without a quorum – that’s possible but only if the originally convened Meeting was adjourned due to the lack of a quorum, and then re-convened after a minimum 7 days, at which time whoever is then in attendance at that Meeting both personally and by proxy 30 minutes after its notified commencement time is then considered a quorum.
As for what you can do about irregularities with any of the above, probably very little on your own, but if you can gather the support of some like-minded Owners, then you could collectively petition the Secretary of your E/C and copy the Strata Manager, pointing out the consequences should it ever need to enforce a By-Law that’s been changed/added to without a registered amendment, of the C of C having no legal standing, and of Meeting resolutions being open to invalidation by application to the NSW Civil and Administrative Tribunal (NCAT).
Such warnings would of course achieve little unless the Owners concerned are prepared to follow them up, where I’d suggest Mediation by a Community Justice Centre as opposed to by NSW Dept. of Fair Trading, and as last resort at least the strong indication that you’re prepared to by-pass the NCAT and to instead pursue administrative sanctions under the Corporation’s Act 2001 or perhaps the Australian Securities and Investments Commission Act 2001 (Corporations Law).
I may be clutching at enforcement straws here, but there has to be a better alternative to the conventional and largely ineffective processes to ensure that Owners Corporations, like all others, conduct their affairs according to Law.
Any thoughts?