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  • #8926

    Gday,

    Just wanting to ask a very broad question about anyone’s experience with having a Developer/Original Proprietor sitting on their Council of Owners.

    Our Developer, who still owns one unit (out of 14), has it written in to the Schedule 1 by-laws that he has the right to bypass the election process providing he nominates properly for election at our AGM. He did so at last years AGM, but a few months later we needed an EGM to discuss a range of building defect issues (which he may have had some responsibility for) and we used that opportunity to pass a motion to have him removed from the Council. Our private discussions about him resulting in us thinking that if we need to take legal action, he can’t sit in on Council meetings that may discuss and decide to sue one of its own members.

    In previous Council meetings, he has strongly opposed any suggestions of taking legal action against “those responsible.”

    Not just that, but he is an absolute pain in the backside to deal with – abusive, dishonest, and has committed a few transgressions of our by-laws, falsified minutes while chairing meetings (and refused to change them) while making false accusations against many other Owners.

    Now he is taking us to the State Administrative Tribunal, claiming that he was denied “natural justice” in that he wasn’t given a chance to state his case, or that we didn’t adequately explain why we wanted him removed. My view is he knows damn well why he was removed but is too stubborn to admit he has caused us grief.

    Has anyone else had any similar experiences, at least with the Developer holding a Council position at all times, or having such a decision over-turned at the Tribunal because someone was denied natural justice? I’m hoping the Tribunal sees that the potential conflict of interest will outweigh his supposed natural justice.

    Any thoughts?

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  • #18960
    kiwipaul
    Flatchatter

      @Matthew said:
      Gday,

      Our Developer, who still owns one unit (out of 14), has it written in to the Schedule 1 by-laws that he has the right to bypass the election process providing he nominates properly for election at our AGM.

      Any thoughts?

      The bylaw that he has passed is illegal as it conflicts with the act Sch 3 Part 1

      2 Constitution of executive committees for strata schemes with more than
      2 lots
      (1) This clause applies to an owners corporation for a strata scheme comprising more than 2 lots.
      (2) The executive committee is to consist of such number of members, being not more than 9, as the owners corporation may determine.
      (3) The members of an executive committee must be elected at each annual general meeting of the owners corporation.

      Therefore it is invalid, so he can only be on the EC if he was voted on, he cannot demand a reserved place. Even if he was on the EC by being nominated and their were fewer nominations than places, if you followed the correct procedure to remove him you are ok.

      #18962
      Jimmy-T
      Keymaster

        Matthew

        You refer to the “State Administrative Tribunal” and “Council of Owners”.  Where in Australia are you living?

        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.
        #18968

        @JimmyT said:
        Matthew

        You refer to the “State Administrative Tribunal” and “Council of Owners”.  Where in Australia are you living?

        Sorry, forgot to add I live in WA.

         

        #18970
        kiwipaul
        Flatchatter

          @Matthew said:

          Sorry, forgot to add I live in WA.

          Ignore everything I said in this thread as it applied to NSW and my comments were based on NSW Strata Law.

          It’s critical that if you are NOT in NSW you clearly specify were you are or the advise is meaninless.

          #18977
          Jimmy-T
          Keymaster

            It’s different way out West.

            The salient points in this case are that the nominations for election to the committee have to be presented either in writing or orally at the AGM, so your developer wasn’t properly elected anyway unless there was a lketter of nomination or a verbal nomination at the last AGM.

            Secondly, the “pre-nomination” by virtue of a by-law goes against the statutory requirements for the conduct of election, so it was probably incompetent in the first place.

            When it comes to changing by-laws and removing members of the committee, you need a special resolution at a general meeting.

            To hold the general meeting in the first place, you will need to have given 14 days notice of the meeting and what was to be discussed (and where and when) to all lot owners.

            And, just when you think the Eastern states could not make strata law more complicated, our Western cousins have found a way. A special resolution in WA requires that at least 50 percent of lot owners are in favour (either by a vote in person or by proxy) and that no more than 25 percent of owners actually voting are against the motion.  Best of luck when you start getting 200-lot schemes, 50 percent of which are owned by investors.

            Thankfully, the strata laws and regulations of WA are laid out pretty concisely in THIS document. 

            But if the meeting was held under the terms laid out here, and the resoltion was passed by the approprite number of owners. the developer may be just whistling in the dark to get this overturned.

            However, WA is near the start of a process of educating arbitrators and adjudicators, many of whom, judging by our experiences in the Eastern states, probably don’t ‘get’ strata law (or strata living in general).  In that case, all you can do is keep your fingers crossed that you don’t get an adjudicator who decides that the laws is stupid and of course the developer should be entitled to certain privileges.

            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.
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