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Topic
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I am unsure if this sub heading is where my query should be parked.
1. I am involved in several NSW strata schemes.
2. In May this year, one scheme’s managing agent emailed owners advising of a July AGM and asking us to pony up any motions we would like listed on the agenda. He gave us almost 2 months to do so. He stated that asking owners – several months ahead of an AGM – for motions they may want to list in the AGM agenda is his policy.
3. I queried why an AGM is held a mere 7 months after the previous one?
4. He replied that he erred with the date. The AGM will be held Oct/Nov.
5. Fast forward to last week when I received the AGM agenda for next week’s AGM.
I replied to the agent that I did not get chance to submit motions for the AGM as I understood I would from the May emails. This denial is very troubling in the light of (a) I had no motions to submit in May and (b) recent Mediation sessions against the OC (where my positions were supported by the legislation), but as the OC barely gave an inch means I have to apply to NCAT to resolve them. I wanted to list a couple of motions. But did not get the chance.
Meanwhile the SC listed motions for next week’s AGM that I find illegal: they want to OC to approve pmts to SC members 15 months AFTER they were paid. I understood s.46 of the SSMA requires approval by the OC BEFORE a dime is handed over. These secret pmts were the subject of Mediation, but no agreement reached.
I told the agent that given the above I consider next week’s AGM to be illegally constituted and will apply for Mediation/NCAT to nullify all resolutions passed, as the SC/OC is not acting in everyone’s interest. I said that I want “months” (he promised) to include motions and have them inserted into an agenda and then have that agenda sent out, indicating a revised AGM date.
The agent replied: if I submit motions in the next day or so they will be included in the agenda for next week’s AGM.
Before I could answer, the agent again wrote: “It’s too late to include them in the AGM agenda….you had 5 months to submit motions” and “you can always have your motions listed for a general meeting”.
Points:
1. In the last several years we have had maybe one general meeting;
2. No date was issued for the agent’s proposed general meeting. It is odds on there will be no such meeting; and
3. I want my motions listed for the AGM.
4. The agent cannot be trusted as was proved at Mediation (he claimed something that the Mediator said was plain wrong)
What are my rights? What else can I do?
Thank you.
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I think your chances of having the general meeting declared null and void are somewhere less than zero.
It’s true that there are provisions in the Act for invalidating resolutions and elections if the meeting has not been held in accordance with strata law.
There is nothing there about invalidating a meeting and as far as the individual componente of the meeting, the Act says the Tribunal may refuse to invalidate resolutions or elections if the failure to comply with the letter of the law did not adversely affect any person, and that “compliance with the provisions would not have resulted in a failure to pass the resolution or affected the result of the election”.
In your shoes, I would find an appropriate motion on the agenda and, at the meeting, propose an amendment stating that another general meeting be held withing however many weeks to consider the motions that you were not allowed to present due to confusion over timings.
For instance, there is a compulsory motion on every AGM agenda to decide if any matter or type of matter is to be determined only by the owners corporation in general meeting.
You could ask the meeting to amend that motion to include that another general meeting be scheduled to consider some very serious matters that were left out of the current meeting due to confusion over timing.
You might even float what the issues are and how important it is that they be discussed as soon as possible, hence setting a new meeting date. Or you could just call for the support of 25 percent of owners (including yourself) to call for a other general meeting.
But be aware that there is no obligation on the part of the secretary or strata manager to invite owners to submit motions. That’s because there is an obligation for any motions that do come in to be included in the agenda of the next general meeting, whenever that might occur.
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.
The only obligatory general meeting – assuming the committee doesn’t call one and owners can’t raise the requisite 25 per cent of votes demanding one – is the AGM, which must be held once every financial year.
But it must be said that if you can’t raise 25 percent of owners to support your call for an extraordinary general meeting then they can’t share your sense of urgency about the issues, which casts doubt about your ability to get sufficient support for your motions anyway.
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.
The OC failed to attend, so I was offered the opportunity to go to NCAT. But at NCAT I want to approach this matter differently.
I think you’ll find that if you try to change the specifics of your action at NCAT, the Tribunal may not accept it as this is not what you went to mediation about (even though the other side didn’t turn up).
What you are now seeking seems to be to punish the strata committee for deceptive behaviour. Your options in that regard are limited to seeking removal of some or all of the office-bearers from their roles on the committee, seeking their removal from the committee as a whole (Section 238, below) or seeking the appointment of a strata manager to take over the roles of the committee Section 237.
If that’s what you want, then you may have to start again with another application for mediation. Or you could ask the Member at the Tribunal to exercise their discretion to apply Section 238 “on its own motion”.
I wouldn’t bet on you being successful with either motion unless you can show how the actions of the committee members have materially harmed the strata scheme and I think you have zero chance with a section 237 appointment on those grounds alone.
238 Orders relating to strata committee and officers(1) The Tribunal may, on its own motion or on application by an interested person, make any of the following orders—
(a) an order removing a person from a strata committee,
(b) an order prohibiting a strata committee from determining a specified matter and requiring the matter to be determined by resolution of the owners corporation,
(c) an order removing one or more of the officers of an owners corporation from office and from the strata committee.
(2) Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has—
(a) failed to comply with this Act or the regulations or the by-laws of the strata scheme, or
(b) failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.
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.
Just an observation for those reading this far.
Strata living is sometimes infuriating. There are things in strata thst bug us.
The actions of others as they affect us , I see dividing into two area. Things that are morally questionable ( but strata legal) and things that are strata illegal.
The tribunal will not solve nor entertain the immoral behaviour ( unless it is strata illegal). If you are going to start action through the tribunal make absolutely sure which part of the act you are going to rely on.
The OC in a friend’s building had action taken against it by an owner who did not like an increase in levies. His grounds were that he could not afford to pay the increase. After a directions hearing the owner eventually got legal advice, which advised him he didn’t have a case. He withdrew the action.
And when you get to the tribunal, it’s like every other court. It’s up to the applicant to prove to the member the section of the act that’s been breached, and the evidence to prove it. (In the above matter the OC had over 200 pages of evidence prepared to refute the owner).
Agree with all of this.
Coincidentally, I am just noodling over a column about how by-laws that wouldn’t stand up to a challenge at NCAT can work in other ways to signal more clearly the “culture” of the community.
Illegally parked cars will be towed at the owners’ expense, noisy residents will have swimming pool keys deactivated, people who don’t separate their rubbish will be photographed and named and shamed …
None of these would survive a challenge at NCAT (apart from maybe the last one) but they might make residents stop and think.
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.
Truly concerned
In the situation you described, I would be going toNCAT not to right the breaches of the SSMA, but to have the committee member removed , if the actions you say they did could be proven.
Get rid of the problem at the source.
That would also put the wind up the other committee members that they stay in line.
In my opinion , the positions of chair, treasurer or secretary do not confer any extra powers to members. The act is very specific in that these positions have certain functions, but no extra power.
Of course members who attain these positions often assume xtra powers and become roadblocks to a democratic process. They justify them maintaining these positions because ” no one else can do it” or some other excuse
In order to break this entitlement, you need to get them removed from the committee completely.
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