@stanno said:This is difficult because its all after-the-fact. If the EC learns that this AGM is invalid, is there legislation to dictate that we must hold a new “first” AGM and re-elect the SM and EC? This is particularly important. If there is, can you please reference it.
Section 153 of the Act (below) says that an NCAT adjudicator can declare decisions made by a meeting (and elections at the meeting) invalid if provisions of the Act in relation to meetings have not been adhered to. However, they can choose NOT to make that order if the decisions of the meeting have not affected anyone adversely and if compliance with the Act would not have changed the outcome of the meeting.
Now, dealing with the proxies as a separate issue, they have to be presented on a form signed and dated by the lot owner who is giving the proxy. The strata anager should have these on record – if he doesn’t they are invalid.
Now, if you can prove that the bogus proxy votes were used to pass a false majority, you could have a case (you may need statutory declarations from people who allegedly gave their proxies).
However, if the indications are that the only thing wrong with the meeting was that it wasn’t quorate and the majority would still have passed the motions anyway, it’s a tougher case to win. For instance, if the bogus proxies that made the meeting quorate were counted as “no” votes and the motions would still have passed then the odds are stacked against you.
That said, the strata manager’s behaviour has been highly unprofessional (to say the least) and revoking the decision of the meeting may be the easiest way to resolve the issue.
If you need legal advice, our friends at Makinson d’Apice (click on the ad on our home page) will help you out. If you want to research previous cases, go HERE , then click on a year, click on ‘search database’ and type in ‘quorum”.
You will find links to myriad weird and wonderful cases – including one where 11 out of 53 units comprised a quorum (25%) because nine of the owners were unfinancial and therefore not able to vote, meaning the quorum was based on 44 rather than 53 lots. Have fun.
By the way, if NCAT does declare the meeting invalid then the contract with the strata manager is also invalid. They might kick, scratch and squeal (and appeal) but if they don’t return your documents within a reasonable time, they could be in a lot of trouble.
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.