How to defer an AGM?

Is there a date when the AGM must be held? In the ACT, which I am familiar with, the AGM must be held within slightly over a year from the previous one. Another constraint is that it must be held within 3 months of the end of the previous financial year. 

Apply to NCAT for an Interim Order deferring the AGM until after the new laws come in because you believe the current EC is manipulating the current laws to force an advantage to one individual to make it easier for him to sell his unit, putting the other owners at a disadvantage. 

I think there is enough dubiety in this election to question its validity (especially since they clearly structured the nominations deliberately to circumvent the law).

I would first of all check who nominated whom, then check if they are actual nominees and if there was any cross-nomination.  People standing for election can’t nominate each other, for instance. And owners who are not standing for election can only nominate one person (per lot that they own). Have a look at 31(1)(c), 31 (3) and 31(4) and  32(b) below.

Then consider taking action at NCAT under the terms of Section 24 (2) (below) to have another election held.  The obvious fact there has been attempt to circumvent the Act, in a way that subverts the spirit of the Act, is probably not enough to have a new election called but I would be surprised if there wasn’t something technically deficient in the way they did this that renders the election invalid.

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.
(2) 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 Part 10 (other than Division 6 or 7) of the Strata Schemes 

31. Persons who are eligible to be appointed or elected to strata committee
(1) The following persons are eligible for appointment or election to the strata committee of an owners corporation:

(a) an individual who is a sole owner of a lot in the strata scheme,
(b) a company nominee of a corporation that is a sole owner of a lot in the strata scheme,
(c) an individual who is a co-owner of a lot or a company nominee of a corporation that is a co-owner of a lot in the strata scheme, if the person is nominated for election by an owner who is not a co-owner of the lot or by a co-owner of the lot who is not a candidate for election as a member, 
(d) an individual who is not an owner of a lot in the strata scheme, if the person is nominated for election by an owner of a lot who is not a member, or is not seeking election as a member, of the strata committee.

(2) To avoid doubt, an individual who is a sole owner of a lot may nominate himself or herself, and an owner that is a corporation may nominate the corporation’s company nominee, for election as a member of the strata committee.
(3) A sole owner of a lot in a strata scheme may not nominate more than one person for election as a member of the strata committee, except as provided by subsection (5).
(4) Only one co-owner (including a company nominee of a co-owner) of the same lot may be a member of a strata committee at the same time, except as provided by subsection (5).
(5) A person who is an owner of more than one lot in the strata scheme may nominate one person for election as a member of the strata committee for each lot for which the person is an owner.

32 Persons who are not eligible to be appointed or elected to strata committee
(1) The following persons are not eligible for appointment or election to a strata committee or to act as members of a strata committee unless they are also the owners of lots in the strata scheme:
(a) the building manager for the strata scheme,
(b) a person who acts as an agent for the leasing of a lot or lots in the strata scheme to tenants,
(c) a person who is connected with the original owner of the strata scheme or the building manager for the scheme, unless the person discloses that connection at the meeting at which the election is held and before the election is held or before the person is appointed to act as a member,
(d) any other person prescribed by the regulations for the purposes of this section.
(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.
(3) A person who becomes ineligible for appointment or election to a strata committee after being appointed or elected to the strata committee must disclose that fact to the secretary or chairperson of the owners corporation as soon as possible after becoming aware of that fact.
(4) A disclosure by a person under this section, other than a disclosure that is made at a meeting of an owners corporation or strata committee, is to be made by written notice given to the secretary or chairperson.

I think I may have a partial answer for you. Under Section 18 (below) any member of the committee can declare that a member has a conflict of interest in discussing and voting on anything that may impact on a business in which they have a direct or indirect interest.

Those members of the committee then have to absent themselves while the remaining members discuss whether or not they should be allowed to be part of the discussion and vote on the item. if the numbers fall the right way, they would not be allowed to be part of the discussion

I don’t know how the numbers stack up on your committee but it sounds like you have the opportunity to remove the rental agents from any discussions about issues that affect tenants – which is just about everything.

Have a look at the clause and see how that adds up for you 

18 Disclosure of pecuniary interests
(1) If:
(a) a member of a strata committee has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting, and
(b) the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter, the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the strata committee.
Maximum penalty: 10 penalty units.
(2) A disclosure by a member at a meeting of the strata committee that the member:
(a) is a member, or is in the employment, of a specified corporation or other body, or
(b) is a partner, or is in the employment, of a specified person, or
(c) has some other specified interest relating to a specified corporation or other body or to a specified person,
is a sufficient disclosure of the nature of the interest in any matter relating to that corporation or other body or to that person which may arise after the date of the disclosure and which is required to be disclosed under subclause (1).
(3) Particulars of any disclosure made under this clause must be recorded by the strata committee in a book kept for the purpose and that book must be open at all reasonable hours to inspection by any person on payment of the fee determined by the strata committee.
(4) After a member has disclosed the nature of an interest in any matter, the member must not, unless the strata committee otherwise determines:
(a) be present during any deliberation of the strata committee with respect to the matter, or
(b) take part in any decision of the strata committee with respect to the matter.
(5) For the purposes of the making of a determination by the strata committee under subclause (4), a member who has a direct or indirect pecuniary interest in a matter to which the disclosure relates must not:
(a) be present during any deliberation of the strata committee for the purpose of making the determination, or
(b) take part in the making by the strata committee of the determination.
(6) A contravention of this clause does not invalidate any decision of the strata
committee.
(7) Without limiting subclause (1), a person has an indirect pecuniary interest in a matter if a person connected with the person has a direct interest in the matter.

We’ve had a response from the Minister’s office to the effect that anything that looks a deliberately dodgy as this scenario could be effectively challenged at NCAT under Section 232, the magic bullet of strata complaints that allows the Tribunal to revoke and rescind anything that seems to be against the letter or intent of the Act.

On the question of a committee “stacked” with company nominees, and where there are declared or undeclared conflicts of interest, while the decisions it makes are not automatically rendered invalid, the circumstances of the decision-making could lead to them being rescinded.

“Whilst any contravention of the disclosure requirements does not invalidate a resolution, such a contravention may assist NCAT in relation to invalidating a resolution or removing a member of the strata committee for such a contravention,” the Minister’s media officer told us.

So, once again, it’s a question of going to the culprits and asking them if they would like to withdraw or be taken to NCAT where their grubby games will be publicly exposed and then they may be kicked off the committee anyway.

This was the response from the Minister’s office. 

The complainant raises the issue of the executive of the strata committee of a strata scheme attempting to control the election of members of the strata committee through the provisions of the Strata Schemes Management Act 2015. 

s.232 of the Act allows NCAT to make orders for disputes relating to a strata scheme, including disallowing resolutions and removing members of the strata committee.

{Flat Chat} is … correct in its advice to the complainant that the requirements in the Act for disclosure of pecuniary interests by members of the strata committee would tend to act against the interests of the secretary in controlling the day-to-day operation of the strata scheme.

Whilst any contravention of the disclosure requirements does not invalidate a resolution, such a contravention may assist NCAT in relation to invalidating a resolution or removing a member of the strata committee for such a contravention.

It is important to note that the owners’ corporation is the paramount decision-making body of any strata scheme. It can continue to make decisions about any matter, even though it has been delegated to the strata committee or a strata managing agent. An owners’ corporation may, in a general meeting, continue to exercise all or any of the functions conferred on it by the Act or the by-laws, even though a strata committee or managing agent holds office.

The complainant should be made aware of the provisions of s.36 of the Act. Whilst a decision of a strata committee is taken to be the decision of the owners’ corporation, in the event of a disagreement between the owners’ corporation and the strata committee, the decision of the owners’ corporation prevails.

The strata committee cannot make a decision that is required by or under any Act to be made by the owners’ corporation by unanimous resolution, special resolution or in general meeting. It also cannot make a decision on any matter or type of matter that the owners’ corporation has determined in general meeting is to be decided only by the owners’ corporation in general meeting.