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  • #74028
    Deyana
    Flatchatter

      After communication issues with my strata for 18 months, I put a request for general business forward for my AGM. In that, I requested a motion be put forward in general business regarding the EC conducting an investigation into whether the communication issues were isolated or part of a wider issue. I also requested that a document be circulated to all owners prior to the AGM with the full details.

      The document wasn’t circulated and the matter was only discussed; no motion was put forward. This is despite me checking with the strata weeks before the AGM that they had received the request on the proper form and it would be acted on.

      Is this legal? Surely an owner request for a motion cannot be ignored in that way.

      FYI, I’m in the ACT.

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    • #74074
      TrulEConcerned
      Flatchatter

        Good evening Deyana,

        I cannot speak for what happens in the ACT, but in NSW I have seen similar situations where an owner has a grievance and wanted a motion – presumably prepared by the strata mgr – to address the grievance be listed for a general meeting.

        I recall one cunning SC member acknowledging a similar email from an owner weeks before a meeting, but not acting at the meeting in the manner the owner expected. In fact not acting as any reasonable person would expect.

        The reason was, it was said: is that owners have the right to provide motions to be listed on the agenda for a meeting, but the owner in question failed to provide a motion. The strata manager and SC claimed they expected a motion to be provided by the owner in the stipulated time and such a motion would be listed for a general meeting and the circular would also be attached to the agenda.

        Of course everyone knew what the owner meant by his request weeks earlier. He is not steeped in strata intricacies and expected the strata mgr or strata committee to help him by drafting the motion.

        The SC/OC/strata mgr at the general meeting by merely discussing the issue broadly but not proposing a motion in aid of the owner was from my perspective a demonstration of very poor conduct, but not unlawful. It did not breach the relevant acts. While I had several criticisms of that SC, on this issue I can’t claim they clearly breached any act or regulation. Other than common decency.

        Assuming your correspondence on the motions was with the strata mgr,  complain to your version of Fair Trading and ask what regulations cover the conduct of  strata managers?

        If that regulation or act mentions a requirement for a strata mgr to act “in good faith” or “honestly”, you could file a complaint with FT that the strata mgr failed to comply with what is required of him. Note, a complaint against the strata manager is different from a complaint against the OC. Of course there is nothing stopping you complaining also about the OC’s behaviour.

        The strata mgr should have made clear to you that it is you that needs to provide a motion and he could have given you some guidance. Instead, by his actions in not spelling out the process and not pointing out what you need to do, he misled you.

        You were made to understand that a motion would be listed and the inference was that either he or a committee member would write it.

        Mention in your filing what loss you suffered.

         

         

         

         

        #74079
        Jimmy-T
        Keymaster

          wanted a motion – presumably prepared by the strata mgr – to address the grievance

          You know what they say about “assume”. The strata manger is going to do what works for the strata committee, because they will have a huge say in whether or not their contract is renewed. Expecting them to write a motion to further a dispute with the committee is way too trusting.

          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.
          #74081
          TrulEConcerned
          Flatchatter

            Jimmy, I agree, SM mostly do what they can to please the SC and one owner is not the SM’s priority.

            Maybe my point was not clear: in addition to the above point, when a SM or SC want evade responsibility or evade taking action they will often ignore complaints from owners or interpret the complaint to their liking. This often leaves an owner not aware of the ins and outs of the law left high and dry.

            The SM and OC know that if the owner ever takes the matter to FT, it’ll be many months before either will have to account for their inactivity on the matter.

             

            #74137
            philjohnk
            Flatchatter

              What is even worse, is when a Motion is put forward and accepted by the SM and included in the Agenda, but then the Motion is ruled “out of order” before the meeting starts.  Guess by who?  That’s right, the Solicitor brought along by the SM at the Committee’s request and the Chairman, who is also from the SM, agrees. Obviously because it is his firm’s solicitor.

              So much for AGM’s to be a meeting whereat members can discuss their issues and get them resolved.  AGM’s are for Committee’s to put THEIR agenda forward and get it passed.

              The member who had the Motion ruled out of order was left with the option of spending perhaps $10k to get legal advice and take the matter to NCAT, of course by the time it would have been useless, the horse had well and truly bolted. And of course the Committee would have had their legal expenses paid out of the Admin Fund.

              #74147
              Jimmy-T
              Keymaster

                And of course the Committee would have had their legal expenses paid out of the Admin Fund.

                If an owner wins their case at NCAT, the owners corp has to raise a special levy for costs that excludes the prevailing owner.  That means ALL the owners except those who won the case would be out of pocket. If owners were made aware of this, strata committees would soon be told to pull their heads in when it came to frivolous cases.

                 

                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.
                #74171
                TrulEConcerned
                Flatchatter

                  Jimmy what you say is true: a lot owner who wins does not have to share in the cost of legal fees of the OC (s. 104)

                  But:

                  1. A lot owner, after winning, may, like I experienced may have > 2 years of fighting to get the SM to remove the unlawful charge to his lot for a share of the legal fees. Only when I threatened to return to NCAT for an order on the breach of s. 104 did the SM finally relent and removed the charge from my lot. The OC was cunning in those years. It added the unjust share of the legal fees to my a/c but never declared me “unfinancial” even though I never paid those unjust amounts;

                  2. A lot owner may be reluctant to take the OC to NCAT and say spend say $8,000 on a case when there is no certainty of winning (there never is); and

                  3. Depending on the nature of the case, an OC could claim its legal fees on its insurance to defend the matter and  in such a case that would not result in a special levy. It instead would result in an email by the OC which could be construed by some as a threat by the OC along the lines of “the OC has been dragged into NCAT and will claim on its insurance policy for legal expenses. The policy’s ceiling  on such an item is $20k”.

                  #74645
                  optusJo
                  Flatchatter

                    I think a problem with all of these disputes is that an owner believes that the SM knows the answers and is there to help.  You then find out otherwise!

                     

                    #74649
                    Jimmy-T
                    Keymaster

                      I think a problem with all of these disputes is that an owner believes that the SM knows the answers and is there to help. You then find out otherwise!

                      If the recent SCA scandal has taught us nothing else, it is that SOME strata management firms are more about profits than service.  Netstrata was the company caught with its pants down, partly because its boss was also the president of the SCA.

                      But look at the other big companies using similar vertical integration models and you can see the potential for maximising profits through their own insurance brokerages and integrated (and sometimes subsidiary) legal firms that have the opportunity to rack up costs against levies defaulters in pursuit of debts, at no cost to the OCs concerned, but with potentially horrific consequences for the homeowners who are already doing it tough.

                      So it’s no surprise that symbiotic unhelpful relationships between strata managers and strata committees can evolve.  In a worst-case scenario, the SM shields the committee from complaints and helps to ensure they get re-elected; the committee renews the contract every three years.

                      It’s only when an SM with integrity (and there are many) refuses to act in a way that’s to the detriment of the majority of owners, or the majority of owners rises up and demands change, that these cosy relationships can be severed.

                       

                       

                      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.
                      #74706
                      StuMcL
                      Flatchatter

                        Jimmy what you say is true: a lot owner who wins does not have to share in the cost of legal fees of the OC (s. 104)

                        3. Depending on the nature of the case, an OC could claim its legal fees on its insurance to defend the matter and in such a case that would not result in a special levy. It instead would result in an email by the OC which could be construed by some as a threat by the OC along the lines of “the OC has been dragged into NCAT and will claim on its insurance policy for legal expenses. The policy’s ceiling on such an item is $20k”.

                        Assumes the insurance company covers the fees claimed.

                        In our case the SM lodged a claim, the insurance company declined the claim after the OC lost the NCAT  proceedings. Lots of upset owners having to pay a special levy that the SM and BM had told them would be insured.

                         

                        • This reply was modified 1 month ago by .
                        #74757
                        Flame Tree (Qld)
                        Flatchatter

                          In Qld, you really need to write your own AGM and committee motions to convey exactly what you want and how you want it said. There is enough info online advising how to do so but essentially, they need be lawful, simple, brief, actionable, and likely costed. You can also provide a word-limited explanatory statement with justifying guff or further information, such as pictures or quotes. They need be submitted in time (in Qld it’s before the end of your financial year) or they need wait until the next AGM or EGM. Be careful that the committee doesn’t just decides it will ignore them due to their dodginess, exposure, slackness or naivety, as I recently experienced. As I understand it the committee has longer than owners to get AGM motions in so if they are half decent, they might and can include your motion as a committee motion to get it included. My sketchy strata guy ignored responding to my request to know why my Motions were not included and only sent his response email at 6pm the night before the AGM after he had long since gone home and it was too late to really do much. Just note, with motions you can resubmit any motion again should you lose the vote but some states limit the time between doing so – say, once a year and the number received in a year by the same owner (likely to curtail keyboard warriors who are never seemingly satisfied).

                          #74898
                          TrulEConcerned
                          Flatchatter

                            @StuMcL

                            Was your case a situation where the SM or OC initiated proceedings? In my case the OC defended an action and the strata policy covers defense, subject to the insurer’s belief that the OC has a “reasonable chance of success”.

                            #74909
                            StuMcL
                            Flatchatter

                              @StuMcL

                              Was your case a situation where the SM or OC initiated proceedings? In my case the OC defended an action and the strata policy covers defence, subject to the insurer’s belief that the OC has a “reasonable chance of success”.

                              Owners instigated the NCAT action, SM applied to the insurance company for legal defence coverage, not sure if the OC even knew, the insurer was not confident to so delayed approving the claim until after the NCAT proceedings were finalised and then declined the claim.

                              Case of the insurer smelling a rat and holding off long enough for it to appear I suspect. Didn’t affect me as an applicant but would have sucked to be one of the uniformed owners that got stuck with almost $80k in fees by way of special levy.

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