Stalemate as equal numbers keep new members off committee

peanuts23 wrote:

I understood that a tied vote meant a motion was defeated?

An unresolved tied vote is a failed vote, so the status quo would prevail – i.e. no change.
Your best bet might be to apply to Fair Trading for mediation under section 232 (below) seeking orders that the scheme be required to overturn the decision of only half of the owners to exclude the other half.

Or you could take a fine-tooth comb to Section 5 of Schedule 1.2 and see where the committee did not comply with requirements, then invoke Section 24 of the Act, and ask for the decision to be overturned on that basis. Again you would need mediation and a Tribunal hearing.

Or you could sit down with the other three and explain that if they don’t allow more members on to the committee you will,

1. Seek orders at NCAT (as above)
2. Call an EGM every month to review, discuss and, if necessary, overturn decisions of the committee. Under Section 19 (4), a qualified request for an EGM only requires 25 per cent (two owners in your case) to make the request.
3. Make sure that the blocking of new members, and your objections to it, are recorded in the strata minutes and strata manager correspondence for potential future owners to see.

In other words, either they rethink their position and behave more reasonably, or they are entering a world of hassles and disputes that no one wants.

Offer a compromise.  Maybe five instead of six, then work the election to your advantage by strictly following the rules.

Regarding suggestion 2, it is unlikely that all three committee members would be unanimous on every decision, so the threat of decisions being rescinded at an EGM would be very real to owners who had only prevailed by a majority of two to one.

(1) Orders relating to complaints and disputes

The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following—

(a)  the operation, administration or management of a strata scheme under this Act,

• This reply was modified 2 weeks, 4 days ago by .

In NSW the committee elects the chair and the chair does not have a deciding vote.

As I understand you:
1. There are 6 lots in all and
2. The 3 member strata committee (that existed prior to the AGM) want to remain in place for another year, to the exclusion of the 3 other lots who want to sit on an expanded committee.

If so, in addition to the recommendations by Jimmy, you could seek mediation on the matter by calling NSW Fair Trading on 13 32 20 and they can guide you on applying online. You could allege that the committee is breaching

s37   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”.

You could allege that limiting the committee to the same 3 people who comprised the previous committee benefits only those 3 because half the OC is impeded from carefully examining what exactly took place in the past and the same 3 it seems want to continue with their secretive conduct.

“What exactly are they trying to conceal” you should ask in your application to NCAT.

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”.

If you argue that the 3 are not benefiting the OC (that is failing what is required under s. 37), you then can also allege that all 3 need to be removed because they breached s. 238 (2)(b). Specifically, argue that their united behaviour demonstrates a wholesale failure of diligence inasmuch as the 3 exhibit an inattentiveness to the needs of 50% of the owners.

In the ideal world, the 3 will be ejected from the committee and the other 3, including you, will become the committee.

TrulEConcerned wrote:

If you argue that the 3 are not benefiting the OC (that is failing what is required under s. 37), you then can also allege that all 3 need to be removed because they breached s. 238 (2)(b). Specifically, argue that their united behaviour demonstrates a wholesale failure of diligence inasmuch as the 3 exhibit an inattentiveness to the needs of 50% of the owners.

You’d have to prove that their holding on to power is harming the building in some real and material way.  Telling the Tribunal that it’s anti-democratic won’t cut the mustard. However, if they are using their power to benefit their lots to the exclusion of others or prevent maintenance that would be a different issue. The gang of three could just as easily say that they are keeping disruptive troublemakers away from the levers of power.

TrulEConcerned wrote:

The gang of three could just as easily say that they are keeping disruptive troublemakers away from the levers of power. In my experience at NCAT, I don’t think NCAT would buy such an argument, because it is subjective and cannot be proved.

That was intended as an example of a response to the excluded members saying – without evidence – that the committee members were being unreasonable.  It’s the same argument, based on subjective opinions, not facts.