#25608
Jimmy-T
Keymaster

    First and foremost, I have to say that the advice I am giving below is just my personal opinion and is not professional legal advice.  I am just explaining the possible grounds for a response but I urge you to seek proper legal advice from a specialist strata lawyer as soon as possible.

    There are certain fundamentals related to all this, not least that you can’t be charged levies calculated on any other basis than your Unit Entitlements, so I believe the bills that you have been presented with are invalid because they have not been calculated in accordance with the law.

    If you haven’t already done so, send the owner a letter (or letters) telling them that their bills breach of Section 78(2) of the Strata Schemes Management Act 1996

    78   Manner of levying contributions

    (1)  An owners corporation levies a contribution required to be paid to the administrative fund or sinking fund by an owner of a lot by serving on the owner a written notice of the contribution payable.

    (2)  Contributions levied by an owners corporation must be levied in respect of each lot and are payable … by the owners in shares proportional to the unit entitlements of their respective lots.

    If the original owner proceeds with the meeting and prevents you from voting, there are also processes at NCAT whereby you can get orders to invalidate decisions made at meetings that were not held in accordance with the Act.

    You can also apply for financial assistance in pursuing legal claims.

    So my first step in your shoes would be to approach an experienced strata lawyer and get them to write a letter to the developer explaining what he can and can’t do and why.  

    This is important because if at some time you need to overturn decisions made at the meeting and extract the costs of doing so, you want to be able to prove that the owner was aware that he was breaching the law.

    So find a reliable strata lawyer (one of our sponsors is a leader in this field) and get them to send the letter and do whatever you need done, including getting the owner to pay for your legal advice.

    If you don’t have time to organise that, then send the owner a letter telling them that they are in breach of the Strata Schemes Management Act and you will be challenging the validity of any meeting under sections 153 and 154 of the Act (see below) and that you will pursue orders under section 162 of the Act for the statutory appointment of a strata manager until such times as a properly constituted first AGM can be held.

    Having said that, this is very tricky and you really need to get a strata lawyer on board as soon as possible because I can’t give you professional advice on this.  

    A good strata lawyer will be able to sort this out with a letter and find a way of making your developer pay for it.

     

    153   Order invalidating resolution of owners corporation

    (1)  An Adjudicator may make an order invalidating any resolution of, or election held by, the persons present at a meeting of an owners corporation if the Adjudicator considers that the provisions of this Act have not been complied with in relation to the meeting.

    (2)  An Adjudicator may refuse to make an order under this section but only if the Adjudicator considers:

    (a)  that the failure to comply with the provisions of this Act did not adversely affect any person, and

    (b)  that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution or have affected the result of the election.

    (3)  An application for an order under this section may be made only by an owner or first mortgagee of a lot.

    154   Order where voting rights denied or due notice of item of business not given

    (1)  An Adjudicator may order that a resolution passed at a general meeting of an owners corporation be treated as a nullity on and from the date of the order if satisfied that the resolution would not have been passed but for the fact that the applicant for the order:

    (a)  was improperly denied a vote on the motion for the resolution, or

    (b)  was not given due notice of the item of business in relation to which the resolution was passed.

    (2)  An application for an order under this section may not be made after 28 days after the date of the meeting at which the resolution was passed.

    (3)  If an order under this section is made in relation to a resolution making a by-law or amending or repealing another by-law and the order has been recorded as provided by section 209, the by-laws have force and effect on and from the date the order is so recorded to the same extent as they would have had if the resolution had not been passed.

    (4)  Subsection (3) is subject to the by-laws having been or being amended or repealed in accordance with this Act and to any relevant order made by a superior court.

    (5)  An application for an order under this section may be made only by a person entitled to vote on the motion for the resolution concerned.

    The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.