Do AGM motions require explanations?

› Flat Chat Strata Forum › Living in strata › Current Page

  • Creator
    Topic
  • 24/06/2017 at 5:34 pm #11182
    The Hood
    Flatchatter

      The 2015 Act, commenced Nov 30 2016, says a motion should have an explanation.

      Q 1: Are motions with no explanation out of order?

      Q 2: Are motions submitted before Nov 30 2016, with no explanation, for a meeting that ends up being after Nov 30 out of order at the meeting?

    • Creator
      Topic
    Viewing 6 replies - 1 through 6 (of 6 total)
    • Author
      Replies
    • 24/06/2017 at 8:24 pm #27356
      Lady Penelope
      Strataguru

        My response to Q1 is the same as my response to Q2 –  the Chairperson MAY rule the Motion out of order but the Chairperson can use their discretion in doing so. Ruling the Motion out of order is not mandatory merely because it does not strictly comply  with Section 4 of Schedule 1 of the SSMA 2015. It is very important to understand the meaning of the word MAY in legislation.

        INTERPRETATION ACT 1987 – SECT 9

        Meaning of may and shall

        9 Meaning of may and shall

         

        (1) In any Act or instrument, the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion.

        (2) In any Act or instrument, the word “shall”, if used to impose a duty, indicates that the duty must be performed.

         

        4 Inclusion of matters on agenda

         

        (1) Any owner, or any person entitled to vote at a general meeting of an owners corporation, may require a motion to be included in the agenda of the next general meeting of the owners corporation.

        (2) The requirement is to be made by written notice given to the secretary of the owners corporation that:

        (a) sets out the required motion, and

        (b) states the name of the person making the requirement, and

        (c) includes an explanation of the motion of not more than 300 words in length.

        19 Chairperson may rule certain motions out of order

        The chairperson at a meeting may rule a motion out of order if:

        (a) the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable, or

        (b) any requirement of this Act to include the form of the motion in the notice of the meeting has not been complied with.

        25/06/2017 at 8:48 am #27358
        The Hood
        Flatchatter
        Chat-starter

          Thunderbirds are go.
          But ‘the Hood’ (a well know antagonist on the Thunderbird’s) might say to Lady Penelope:
          Motions submitted prior to Nov 30 2016 did not require an explanation and so it would be inappropriate to be retrospectively applying the new laws to those motions.

          The Hood might then deploy the Savings and Transitional Provisions of the 2015 Act by citing Cl 3 2(b).

          3   General savings

          (1)  Any act, matter or thing done or omitted to be done under a provision of the former Act and having any force or effect immediately before the commencement of a provision of this Act that replaces that provision is, on that commencement, taken to have been done or omitted to be done under the provision of this Act.

          (2)  This clause does not apply:

          (a)  to the extent that its application is inconsistent with any other provision of this Schedule or a provision of a regulation made under this Schedule, or

          (b)  to the extent that its application would be inappropriate in a particular case.

          Then the Hood might then say the above from Lady Penelope is all well and good but the explanation is only required in the requisition and there is no express requirement for it be on the agenda. This opinion is expressed in commentary by a well known strata lawyer from just north of the Shire.

          The Hood might then up the stakes and start citing case law.

          Rothman J in The Owners – Strata Plan No 62022 v  Sahade [2013] NSWSC 2002 at [27] said:

          “The terms of s 153 of the Act apply to irregularities going significantly beyond the requirements of the calling of the meeting. It would apply to a breach of standing orders or the rules of the conduct of the meeting itself: see Clauses 7-20 of Schedule 2.”

          Clause 14 relevantly says:

          “The chairperson at a general meeting of an owners corporation may rule a motion out of order if (emphasis added):

              (a) the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws or would otherwise be unlawful or unenforceable, or …”

          The Hood would then say:
          I think, therefore, if a chairperson ought not to have ruled a motion out of order then the exercise his or her discretion to rule a motion out of order had no basis. In the alternative had the Chair ought to have ruled a motion out of order and did not then their discretion miscarried.

          Discretion cannot be wielded willy-nilly. There is the need to establish the jurisdictional fact – i.e. ‘the Chairperson considers’ requires coming to a state of mind. Therefore there needs to be some facts to support the exersize of the discretion. If the Chair’s considerations are not logical, reasonable and have some basis in fact , even ‘fact’ via probative evidence, then the Chair heads down the road towards Wednesbury unreasonable.

          Is Lady Penelope saying that for both questions the answer to no explanation being fatal is purely at the discretion of the Chair?

          25/06/2017 at 9:33 am #27359
          Lady Penelope
          Strataguru

            I would agree with you on Q2 and add that a Chairperson’s use (or abuse) of their discretionary power can always be challenged if it is unreasonable.

            Some Motions are straightforward and require scant explanatory material, others require a great deal of explanation.

            It is well recognized by the Tribunal that: people in strata make mistakes; legislation is complicated; errors are made; and that some degree of leniency can apply. This very much depends on the situation, and the impact of the action (or indeed, the lack of action). 

            Insufficient information was provided about the substance of the Motions or the circumstances surrounding it for us to comment about whether or not the Chairperson should rule the Motion out of order on the basis of the lack of explanatory material.

            NB: It is always advisable to abide by the requirements of the legislation when submitting Motions to avoid the Chairperson’s use of their discretionary power. Unfortunately, not all Chairperson’s decisions are ‘reasonable’ at all times. 

            25/06/2017 at 12:08 pm #27361
            Jimmy-T
            Keymaster

              @ggf said:
              Motions submitted prior to Nov 30 2016 did not require an explanation and so it would be inappropriate to be retrospectively applying the new laws to those motions.

              This material following the above statement is a perfect example of the kind of  bush-lawyerism that I loathe (and I have only left it up as an example pour encouragez les autres).

              In the real world of strata committees and AGMs, the general process is so imprecise that this kind of legalistic hair-splitting is almost irrelevant.

              FYI: The case quoted is a classic of two rich parties each trying to impose their will on the other and led to the ridiculous situation where one side won their argument at NCAT while, at the same time, the other side successfully argued to have a strata manager installed because the other side kept taking them to the Tribunal.

              No more, please.  There are other websites that will indulge your Rumpolian tendencies.  Here in the real world we are trying to help people deal with actual problems and provide realistic outcomes.

              Lady P’s first response was all that was required.  End of story.

              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.
              25/06/2017 at 6:02 pm #27365
              The Hood
              Flatchatter
              Chat-starter

                Sorry for being so loathsome.
                The last time ‘Rumpole’ was in the NCAT Bailey weaving bush-craft it was to help an owner get past a very obstructive agent who was refusing to give the owner access to the records.
                The matter was SCS 15/60068 and ‘Rumpole’ drew the following observation from the Adjudicator:
                “In her submissions of 1 February 2016 the applicant provides a thorough and authoritative examination of case law in support of her application. I am indebted to the applicant for such a submission.”

                25/06/2017 at 6:50 pm #27366
                Jimmy-T
                Keymaster

                  I never said you were loathsome – just that I loathe long and complicated observations about endlessly hair-splitting legalistic observations regarding hypothetical arguments that are of little consequence to the vast majority of readers.

                  I’m sure you are very nice in your own way. And that’s all, folks!

                  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.
                • Author
                  Replies
                Viewing 6 replies - 1 through 6 (of 6 total)
                • The topic ‘Do AGM motions require explanations?’ is closed to new replies.

                › Flat Chat Strata Forum › Living in strata › Current Page