OK, reading as much material as I can, I think the EC meeting was invalid and, logically, the decisions made at it probably were too – but I don’t think that means much more than you have a bunch of incompetents running your building. If they had any sense they would quickly call another meeting to ratify the decisions they made, if there were any possible repercussions.
By the way, I hope one of our professional members puts me right if I have got this wrong.
I’ve outlined my reasoning below but in purely pragmatic terms, there are enough safeguards under the Act for owners to call an EC to account if they have made bad decisions in meetings that were unconstitutional. I suspect the most you would ever get from Fair Trading and the CTTT would be a ‘there … there …” and a pat on the head.
There are three things that occur to me. The first is that the Adjudicator can declare decisions made at a meeting of an owners corporation invalid if the meeting hasn’t been conducted under the terms of the Act (see 153 below). But is an EC meeting a meeting of the owners corporation? It may be significant that in the preceding and succeeding items in the Act it refers to ‘general meetings’, but only ‘meetings’ in 153.
So is an EC meeting a meeting of the owners corporation, as defined by the Act? I would think not but section 21 (also below) says that decisions made by the EC are to be taken as decisions made by the Owners Corp unless the owners supersede those decisions at a general meeting.
And there is another thread running through these clauses about the validity of meetings – the Adjudicator can reject an application that a vote at a general meeting was invalid – n the application being on the grounds that owners were denied the chance to vote on it – if their vote wouldn’t have affected the outcome.
In other words, even if you rightly claimed that you weren’t given proper notice, it would only be if your vote would have changed the outcome can you ask for the decision to be invalidated. However, this reference in the Act is only in relation to General meetings. See section 154 below.
Finally, the Act is quite specific in terms of the circumstances in which decisions made in good faith, but where the EC wasn’t legally constituted, can still stand (Section 17) below.
That would suggest to me that decisions made at an EC meeting that wasn’t properly notified may not be valid – but it’s an easy fix – the EC just has another meeting (possibly electronically) and takes another vote to validate all its decisions.
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.
21Executive committee’s decisions to be decisions of owners corporation
(1) A decision of an executive committee is taken to be the decision of the owners corporation, subject to subsection (4).
(2) However, the following decisions may not be made by the executive committee:
(a) a decision that is required by or under any Act to be made by the owners corporation by unanimous resolution or special resolution or in general meeting,
(b) a decision on any matter or type of matter that the owners corporation has determined in general meeting is to be decided only by the owners corporation in general meeting.
(3) An owners corporation may in general meeting continue to exercise all or any of the functions conferred on it by this Act or the by-laws even though an executive committee holds office.
(4) Despite any other provision of this Act, in the event of a disagreement between the owners corporation and the executive committee, the decision of the owners corporation prevails.
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.
17 Acts and proceedings of executive committee valid despite certain circumstances
Any act or proceeding of an executive committee done in good faith is, even though at the time when the act or proceeding was done, taken or commenced there was:
(a) a vacancy in the office of a member of the executive committee, or
(b) any defect in the appointment, or any disqualification of a member of the executive committee,
as valid as if the vacancy, defect or disqualification did not exist and the executive committee were fully and properly constituted.