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After living in my strata unit for five years (30 units) last year I decided to get on the executive committee because, ever since I have lived here, the committee of five seemed to be rusted on, with the same people elected every year and agreeing with whatever the chairman decides. Also, since I am retired I thought I could contribute something because all the other committee members work, and two live elsewhere.
I had had a couple of run-ins with the chairman (as have other people), mostly about noise – renovations and otherwise that I objected to, but nothing prepared me for his hostility towards me after being elected onto the EC and being nominated as secretary. For the past year, he has been openly rude to me, not getting in the lift with me, left me off emails (such as voting on major maintenance issues) and, I believe, has told our strata manager to ignore me if I make any requests. We also haven’t had a meeting since the 2016 AGM, almost a year ago.
Recently, I requested by email to the committee a steam-clean of all balconies because a couple of people had mentioned it to me and I had also been thinking about it for some time, although I said it was not an urgent issue. The chairman responded immediately that balconies were the owner’s responsibility and not common property and included instructions on how to wash tiles, to which I replied that I was referring to the overhead concrete and walls of the balconies and not the tiles. What I didn’t know was the other committee members and strata manager had been sent reports about extensive works to the plumbing in the building, including approximately $15,000 of work on the chairman’s balcony and unit. When I found out, I requested the reports, which the strata manager sent to me with an apology. These reports have not yet been released to other owners.
What is worrying me now is that we are probably going to have to have a special levy to cover the cost of these works and the works to the chairman’s unit will be hidden in there somewhere along with everything else.
Our AGM will be in a few weeks and I feel I should bring this to the attention of other owners, along with the balcony cleaning issue. The trouble is, the agenda will be settled without any input from me and I now feel so intimidated by the chairman I am reluctant to stand for the committee again and/or to raise any issues. Most owners don’t even attend the AGM but give their proxies to the chairman so I feel I have very little support.
I am not easily intimidated so am quite distressed about what has happened over the past year. I would really appreciate some advice.
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You have raised multiple issues in your comment. I will try and provide some guidance on a couple of them.
Issue 1 – Bully Chairperson:
Try and stay the course if you can. “Right” will beat “might”. I too have been subject to similar bullying from a Chairperson in a previous scheme when I was Secretary.
The Secretary position is probably a more important position than the Chairperson’s position – although the ‘macho’ Chairperson would probably take great offence at this suggestion!
Under the SSMA 2015 the Chairperson’s functions are as follows:
42 Functions of chairperson of owners corporation
The functions of the chairperson of an owners corporation include the following:
(a) to preside at meetings of the owners corporation and the strata committee of the owners corporation,
(b) to make determinations as to quorums and procedural matters at meetings of the owners corporation and the strata committee of the owners corporation.
Although the OC can decide to delegate various jobs to the strata manager the Secretary is the person who should be assisting the strata manager and should be their ‘go to’ contact. NB: The Owners Corporation and its executive committee can still carry out its duties even if it has delegated them to a strata manager. As Secretary you should not be deliberately ‘left out of the loop’.
Is the Chairperson taking over some of the role of the Secretary? If so then you might need to remind him that if he wishes to take on the functions of the Secretary then he can always step aside from his position as Chairperson and run for the position of Secretary.
In contrast to the Chairperson’s functions, under the SSMA 2015 the Secretary’s functions are as follows:
43 Functions of secretary of owners corporation
The functions of a secretary of an owners corporation include the following:
(a) to prepare and distribute minutes of meetings of the owners corporation and submit a motion for confirmation of the minutes of any meeting of the owners corporation at the next such meeting,
(b) to give on behalf of the owners corporation and the strata committee of the owners corporation notices required to be given under this Act,
(c) to maintain the strata roll,
(d) to enable the inspection of documents on behalf of the owners corporation in accordance with this Act,
(e) to answer communications addressed to the owners corporation,
(f) to convene meetings of the strata committee and (apart from its first annual general meeting) of the owners corporation,
(g) to attend to matters of an administrative or secretarial nature in connection with the exercise of functions by the owners corporation or the strata committee of the owners corporation,
(h) any other functions conferred on the secretary under any other Act or law.
The duty of the strata committee is as follows:
37 Duty of members of strata committee
It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence.
Note : Section 260 provides protection from personal liability for members of strata committees who act in good faith.
Issue 2 – Lack of strata committee meetings.
Strata committee meetings are convened by the secretary of the OC at any time, or by any other member of the strata committee, if requested to do so by 1/3 of the members of the committee or by a previous resolution of the Strata Committee itself.
Strata committee meetings are vital to the running of the scheme and it is arguable that the [s37] Duties of a strata committee are not being satisfactorily complied with if no strata committee meetings are being held.
If you believe that your strata scheme would benefit from more regular meetings and you believe that the non-resident committee members would not be able to attend more frequent meetings then you could raise a Motion for the Agenda at your upcoming AGM allowing the non-resident committee members to be present at the meeting without actually being physically present. This is permitted under the Act. See Sections 10 and 12 from this link: https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/sch2.html
A suggestion for the wording of your Motion (i.e. your Resolution) is below, but check this with your strata manager:
Resolution: “Permitted means of voting” and “person present”
That any member of the strata committee be deemed to be a person present at a strata committee meeting in order to facilitate a quorum and in order to vote at a strata committee meeting if their attendance is via Skype, telephone, or via teleconferencing, or similar (SSMA 2015 Schedule 2). (Vote by Ordinary Resolution)
Your Motion will need to be submitted prior to the AGM being sent out to owners, so do it quickly.
How to convene a meeting is here:
39 Convening meetings
(1) The secretary of the owners corporation may convene a meeting of the strata committee at any time.
(2) The secretary of the owners corporation, or any other member of the strata committee, must convene a meeting of the committee if requested to do so by at least one-third of the members of the committee.
(3) The meeting must be held:
(a) in the case of a large strata scheme, not later than 28 days after the request is made, or
(b) in the case of any other strata scheme, not later than 14 days after the request is made.
Issue 3: Balcony wall and ceiling cleaning.
You may obtain a quote for the washing of the balcony walls and ceilings and submit a Motion (i.e. a Resolution) to the next AGM to be voted on by an Ordinary Vote. If you need help wording the Motion then the strata manager should be able to assist you. Your Motion will need to be submitted prior to the AGM being sent out to owners, so do it quickly.
Issue 4: Proxies to the Chairperson.
Proxy voting rules have changed recently. Please ask your strata manager how many proxy votes are permitted in your scheme, and ensure that your Chairperson does not exceed the correct number.
I am in the ACT, not NSW so I am not familiar with the minutiae of NSW procedure. However, it seems likely to me that the meeting has not been validly notified. If you have people who are not computer literate it seems likely that they can only be validly notified of a meeting by ordinary post.
In the ACT a minimum of two weeks notice must be given. That 2 weeks is from the date a person is deemed to have received the notice. In practice that means adding a week to the notice period to allow for postage. There are legal precedents on that.
Other things in the ACT require EC approval such as the voting form, so it is not possible to put a valid meeting notice together without a resolution of the EC to approve the form. What does NSW require of an EC before you can call a meeting? If you have not had a meeting, I suspect there will be some procedural matter that has not been attended to.
Surely the NSW Act has something to say about how committee members are elected by the OC! The committee can’t just decide that only the committee can nominate. Perhaps arrange to test this by having someone write to the committee to indicate their intention to nominate you.
On occasions like this, insisting on pedantic adherence to rules will be your friend. There are times when all is going well that you can be pragmatically a bit more relaxed but this does not look like an occasion for that.
Consider documenting the flaws of process and then making an application to the Tribunal for an order to cancel the meeting on the grounds of irregularity. That will show you are not to be messed with and force proper adherence to the Act on matters of notice of the meeting date, agenda and motions including for committee appointment.
Look, this meeting is illegal. Notice has been given under the rules for a committee meeting, not an AGM.
There are certain basic provisions in the law that must be observed. The first is that written notice of a general meeting (including the AGM) must be given to each owner at least seven days before the meeting (Strata Schemes Management Act 2015, Section 7 [2]).
The notice must include minutes of the previous general meeting. (SSMA 2015, Section 8 [2])
It looks very much like neither of these things have happened.
If you can hold your nerve until the meeting is held properly, under the statutory notice, you could create absolute chaos and make the chairman look very stupid.
For instance, proxy votes are limited to five per cent of the total ownership (or one, in schemes under 20 lots).
And don’t forget that co-owners can’t self nominate or be nominated by people who are standing for election. And people who self-nominate can’t also nominate other owners.
But I would just wait to see if the meeting goes ahead to play that card. You might also check that all the people voting are “financial” as their votes don’t count and they can’t nominate.
You could end up as the only person on the committee if some of them are co-owners who self-nominate.
Meanwhile, you might inform the strata manager that if the meeting goes ahead you reserve the right to challenge the election and any decisions made at NCAT and explore the possibility of a statutory appointment of a strata manager because of serious dysfunction.
A more critical question, however, is whether or not you have the stomach for the bitter and nasty fight that will ensue (and nobody could blame you for walking away).
But consider writing to other owners to tell them that it’s time for a change at the top. The meeting called for Monday is illegal (and why) and any decisions they make at that meeting could result in individual members of the committee facing personal liability if they chose to ignore your advice.
Tell them the chairman either doesn’t know what he’s doing – or does but is ignoring the law. Meanwhile they are losing money and they are about to get a special levy for a bill for work done to one owner’s property.
Don’t worry about the predictable threats of suing for defamation. Strata owners are allowed a lot of leeway to have frank and free discussions in the running of the building, provided their comments are made in good faith and not motivated by malice.
I would also tell the strata manager that they need to start playing by the rules or they could face being sacked and/or reported to Fair Trading.
Clearly, you really need to get some allies in the building who will support you. And the way to do that is to point out how the law is being broken and how everyone else is paying for it.
Meanwhile, I would still talk to a different strata manager about coming in as a compulsory appointment. They should be able to give you some good advice.
Show your neighbours this response – it often sharpens peoples focus when they realise that there are people out here who know how things should be done.
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.
I deleted my comment as Jimmy T and Sir Humphrey have covered it!
I agree with JT. I had suggested that you could get an order from the Tribunal to cancel the meeting due to irregularity but given the time-frame, I prefer JT’s advice. See if it goes ahead, document the multitude of errors and in your own time, with some allies, get an order from the Tribunal to render the whole lot null and void and of no effect.
All I would do tomorrow morning is phone the strata manager to let them know that if this goes ahead on their watch it will be very embarrassing for their business. The strata manager might turn out to be an unexpected ally. They might have been trying to give good advice but done as they were instructed by the committee and hoped to wash their hands of it. If they see that things are about to hit the fan, they might be more insistent about their advice to the committee.
So, it’s the 28th now. Did you have this irregular AGM last night and, if so, did you attend and what was purported to have been decided?
@Topsheila said:Can you tell me whether this person who is always non-financial is allowed to be on the strata committee? How is she allowed to vote? I cannot find this information anywhere but I find it very odd that everyone knows she is not financial yet they go along with her being elected every year.
Well, all the information you need is below. This person’s elections and all their votes are invalid. However, unless you can impress upon the committee that this is the case, all the decisions, including the election, will be considered valid as they were done in good faith.
You need to inform the committee and the strata manager that they have been conducting meetings in a non-compliant manner and they need to cease until they sort things out in accordance with the Act.
By the way, it sounds like you have a self-interested chair and incompetent manager. If I were you I’d be be talking to another strata manager ASAP about them taking over as a compulsory appointment before all the big ticket budget items are approved.
Strata Schemes Management Act 2015
Section 32: Persons who are not eligible to be appointed or elected to strata committee
(2) An owner of a lot in a strata scheme who was an unfinancial owner at the date notice was given of the meeting at which the election of a strata committee is to be held and who did not pay the amounts owing by the owner before the meeting is not eligible for appointment or election to the strata committee.Schedule 1 Meeting procedures of owners corporation
Part 2 Agendas, nominations and notices
8 Matters that must be included in notice of general meetings
(1) The following matters must be included in, or accompany, the notice given of all general meetings:
(f) a statement that an unfinancial owner … cannot vote at a meeting on a motion … unless payment has been made before the meeting of all
contributions levied on the owner, and any other amounts recoverable from the owner, in relation to the lot.Part 4 Voting rights and voting procedures
Division 1 General rights to vote23 Persons entitled to vote at general meetings
(8) Voting rights cannot be exercised if contributions not paid
A vote at a general meeting … does not count if the owner of the lot was an unfinancial owner at the date notice of the meeting was given and did not pay the amounts owing before the meeting.Schedule 2 Meeting procedures of strata committees
Part 3 Meeting procedure
9 Decisions at meetings(4) Voting rights cannot be exercised if contributions not paid
A member of the strata committee is not entitled to vote on any motion put or proposed to be put to the strata committee if the member was, or was nominated as a member by a member who was, an unfinancial owner of a lot in the strata scheme at the date notice of the meeting was given and the amounts owed by the unfinancial owner were not paid before the meeting.And this is your first step towards putting things right.
Section 24: Order invalidating resolution of owners corporation
(1) The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of this Act or the regulations have not been complied with in relation to the meeting.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.
I think in NSW one week of notice of the AGM is required (Seems very little to me. In the ACT it is 2 weeks or 3 weeks if there are motions for unopposed or unanimous resolutions to be put). However, to calculate the correct timetable for giving notices, reference has to be made to the Interpretations Act 1987 (NSW). When sent by post in Australia, notices are deemed to be received on the 4th working day after the letter is posted. Weekends and public holidays are not working days.
So, if posted on Monday 13th as claimed, the mail would be deemed to have been received on Friday 17th. Add a week and that makes Monday 27th the earliest possible date for the meeting. I think it might be within the letter of the law but it is extremely poor form to deliberately give only the minimum notice, unless there is some urgent decision needed as soon as can possibly be arranged.
Now that more than a further week has elapsed and you and perhaps others have not received the notice that was supposedly posted, I would start knocking on doors and collecting dated signatures from people who say they did not receive their notice. Your document could also allow for people to state when they did receive their notice, and if they did, whether the envelope was date stamped and, if so, what that date was if they still have the envelope. You might be able to prove that the manager and chair have lied about proper notice.
@Topsheila said:
SirHumphrey – I suspect knocking on doors would only antagonise people. You know, the usual – “why are you making a fuss”? And I doubt anyone would still have an envelope.I think it would be helpful to at least have a few instances of people not getting their notice. Otherwise, who is to say that only your notice went missing? It’s easy to blame Australia Post for one missing notice but not several.
Similarly, several people supporting action at the Tribunal is better for you, both so that you have personal support and to strengthen your case so you don’t appear as just one isolated disgruntled person.
I recall at some meeting it was agreed at our block that EC meeting agendas would only go on the Notice Board. No notice board has ever been approved but one is present. Essentially no owner is likely to ever see any agenda or minutes but apart from the technicality of of us not legally having a board I understand that this is legal – the owners apart from myself and those on the now SC have no interest or probably comprehension of what the SC does.
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