Motions out of order

Some motions are required by the various states’ strata acts. Eg. a budget motion is required at an AGM. If it is not sufficiently clearly worded it might not fulfil the requirements of the Act, then what might be ‘illegal’ was the failure of the OC to produce an adequate budget resolution. 

Other motions might not be exactly illegal but simply ‘of no effect’ since they attempt to do things that can’t be done. For example, if the Act says a certain class of decision must be decided by (say) an unopposed resolution of a general meeting and a general meeting passes a resolution to delegate that such decisions to the executive committee, then the resolution would simply have ‘no effect’ because the Act takes precedence. If the Act says something has to be done one way, the OC can’t resolve to do it a different way. 

I could imagine successfully arguing that a GM resolution is ‘of no effect’ because it was not sufficiently clearly worded to determine what was actually resolved. In a borderline case of a poorly worded resolution it might be obvious that some things were clearly intended to be in scope for the resolution and it might be reasonable for an EC to act on the resolution to that extent. However, it might not be clear whether some other things were authorised (maybe in scope, maybe not), in which case it would be wise for the EC to act conservatively in those areas and propose a more carefully worded resolution to clarify the situation. 

You can apply for a ruling at NCAT to have any or all of the  motions passed at the meeting declared invalid under section 153 on the grounds that “the provisions of this Act have not been complied with in relation to the meeting.” You would seem to have ample evidence that this was the case.

You say there is no EC. So it would seem that the powers of the EC have been delegated to the strata manager (not unusual although there is usually a committee formed, even if they don’t do anything).

This is what the Act says

16   Owners corporation to appoint executive committee

(1)  An owners corporation must appoint an executive committee of the owners corporation in accordance with this Division.

and …

(4)  If there is no executive committee of an owners corporation, the strata scheme must be administered by the owners corporation, but nothing in this subsection prevents a strata managing agent appointed under this Act from exercising any functions conferred on the agent.

Basically, if you want to get control of the building back in the hands of the owners, you need to set up a committee (membership can be as few as one but no more than nine). 

You will need to get the strata manager to call a general meeting and make sure you have enough votes, in person or by proxy, to establish a quorum which is 25 percent of owners or 25 percent of unit entitlements.

You will need an agenda that includes establishing the number of seats on the committee and then the election of the committee if there are more nominees than there are vacancies.

Once you have done that, your committee has the power to intruct the strata manager and demand all the documents that you feel are not being made available.  You would also do well to take SCA-NSW’s free online course for executive committees.

Meanwhile, have a look at section 17 of the Act to see how that might apply  if your strata manager doesn’t assist with setting up the general meeting.

17   What happens if executive committee is not appointed?

(1)  An Adjudicator may, on application, make an order appointing a person nominated by the applicant (and who has consented to that nomination) to convene a meeting of the owners corporation if no executive committee of the owners corporation exists after the first annual general meeting.

(2)  The meeting is to be convened and held within such time as is specified in the order.

(3)  A meeting held under this section is, for the purpose of the election of an executive committee, taken to be the first annual general meeting of the owners corporation.

(4)  An order made under this section may include such ancillary or consequential provisions as the Adjudicator thinks fit.

(5)  If an order made under this section so provides:

(a)  the person appointed to convene a meeting of an owners corporation by the order is to preside at the meeting and, while the person so presides, is taken to be the chairperson of the owners corporation, and

(b)  notice of that meeting may be given in the manner specified in the order.

(6)  An application under this section may be made only by an owner, mortgagee or covenant chargee of a lot in the relevant strata scheme.