- This topic has 2 replies, 3 voices, and was last updated 10 years, 11 months ago by .
-
Topic
-
We are having trouble leaving our current SM,we gave 3 months notice to leave which was in the contract,but the SM decided when the 3 months where up he wouldn’t hand over the books and monies even after we had an extraordinary executive meeting and it was a unanimous vote to move to a new SM.
We went to mediation at Fair Trading and it was decided by both parties that if we had another AGM at the original SM office and it was a unanimous decision again to leave the current SM, he would release our records etc within 7 days.
We had the meeting and it was a unanimous decision again to move to another SM,The SM still wont hand over the records etc as he said he would within 7 days,now he wants to give them to us in another 3 months time!!!
We had another extraordinary EC meeting and sent a letter asking for all records etc be released within 7 days as the Strata Law states in section 105,he still refuses.
We are out of contract,we gave 3months notice,have been to Fair Trading and he still wont release them.
At the AGM he also would not accept proxies that only had the box ticked that stated the proxy can vote on any matter,he said it didn’t specifically say to appoint another SM so he discarded them,myself and others protested as it was a signed legal document on the correct form,but he took no notice.
My questions are… How do we get our books etc back and not wait another 3 months? and does he have the right to refuse?
Are the proxies legal?
What is the course of action now? Fair Trading is a toothless tiger and personally a waste of taxpayers money,how can we go there and they cant make a decision?
-
Replies
-
Presuming you have done all the termination steps properly, and it sounds like you have (a resolution to terminate need only be done as a majority decision of the OC, note that is not the EC).
This is the relevant provision of the Act. Tell the Strata Manager in writing that you require him to hand over the records or you will lodge a formal complaint regarding his conduct with Fair Trading.
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/s105.html
I’m not sure why you went to mediation.
……..and as Clause 5.7 of the standard form of Strata Management Agency Agreement states:
If the agreement is terminated the agent must, within 7 days after payment by the owners corporation to the agent of all outstanding amounts, make available at the agent’s office for collection by the owners corporation records, keys and other property of the owners corporation in the possession of the agent ;
then you should also contact Strata Community Australia (SCA) – the phone number for their NSW Chapter is 02 9492 8200. They’re the peak industry body, so ascertain whether your Strata Manager is a Member (most are), and if so lodge this form with them.
If your Strata Manager is not a Member and SCA’s complaints process can’t therefore be used, then rattle Fair Trading’s cage once again because they can (and should) take disciplinary action against him under Sect 192 of the NSW Property, Stock and Business Agents Act (2002) as he’s very definitely in breach of that Act on any number of these grounds.
With regard to the validity of the Proxies, paragraph 3 on the prescribed Form is intended overcome situations where a number of absent owners have routinely given their proxies to the Strata Manager, who cannot then exercise those on a vote for which he/she would “derive a pecuniary or other material benefit” unless a voting instruction is given at that paragraph – such as where that vote is to appoint them or to extend their Agency Agreement.
Clearly that’s not the case where the vote is to remove the Strata Manager (no benefit there!), so in my opinion any lack of instruction by absent Owners at paragraph 3 would not invalidate their Proxies in your circumstance; although it matters not as a simple majority vote is all that’s required to terminate the Agency Agreement.
- You must be logged in to reply to this topic.