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Hello,
Would somebody be kind enough to give me advise on following issue:As mentioned some months ago, two of 8 owners would like to have their balconies upgraded at the OC cost. Two reports through a structural engineer and council were already done. They couldn’t find anything to be wrong with the balconies. Only comment was that they don’t comply with current BCA, but with the BCA when the building was built.
At the last EGM (July 2014) the motion was dismissed, because it was not stated that special resolution is required (see below the motion and the minutes).EGM 2014
Agenda motion:
That the western balustrades of Units ……. be replaced to make them safe and also compliant with the current BCA standards.
Minutes:
Submitted by the Owner of Unit ….
Motion Declared Out Of Order By the Chairman.
There is no supporting evidence that the balustrades are not safe thus any approval under this motion would require a special resolution as it is considered an alteration to common property under Section 65(A)1.Now we are having another EGM, conducted without our strata manager and again the two owners, who want to have their balconies upgraded, put the same motion on the agenda again, with the only difference that they are going already to present quotes for the upgrades. Our strata manager, who prepared the agenda for the meeting, once again didn’t put that special resolution is required (see below). Unfortunately our strata manager is not neutral and always on the side of these two owners.
From the 8 units, 4 are in favour and 4 against. The applicants are pushing for a simple resolution, because they know, they would have the majority through the unit entitlements, but wouldn’t get the 75%, needed for the special resolution.Motion EGM 31.3. 2015
That the western balustrades of Units ……. be replaced to make them safe and also compliant with the current BCA standards. Note: Quotes will be supplied to all owners at least one week prior to the meeting.
Could you kindly advise me, if the owners, who are against this motion, can ask the chairman to call the motion out of order, because it is not stated that special resolution is required?
What shall we do, if the chairman (one of the applicants) refuses to do so and will handle it as standard resolution. Can we advise him that we are going to take him to CTTT and make him responsible?
What can we do against our strata manager, who is supporting these owners and knowingly refuses to put for a second time the motion as special resolution.
I would be very thankful for your advice how to deal with this situation.
Thank you
Alinka
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Replies
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alinka – as your Chairman previously ruled the original Motion out-of-order on the grounds that you describe in your post, and it would appear that the Motion to be put at the Extraordinary General Meeting (EGM) will be non-compliant with the Act on those same grounds (i.e. no evidence and incorrectly put), then it too should be ruled out-of-order; shouldn’t it?
Your Strata Manager is amongst other things engaged to ensure that the Owners Corporation acts strictly in accordance with the Law and not to just be a pawn to the Executive Committee, although perhaps that’s why they’re not going to attend the EGM.
My advice is to again seek to have the Motion ruled out-of-order on the same grounds as it was on the first occasion, and to advise the Chairman in advance of the Meeting that you and like-minded Owners will be seeking Orders under Sect 153 to have any resolution that may be made in favour of the proposal invalidated on the grounds that a vote in compliance with the Act (i.e. as a special resolution) would have resulted in that proposal being defeated.
alinka – if your Strata Manager is not the Licensee of the business, then make an appointment to see whoever it is that holds that position and make your complaint.
Depending upon how that goes, the peak professional body for Strata Managers is Strata Community Australia (NSW), so start with a call to them on (02) 9492 8200 in order to find out if your Strata Manager or their Licensee is a Member, and if either is, then have a read through the Code of Ethics and if what you allege that your Strata Manager is doing is contrary to any provision of that, then lodge a Complaint using the Form supplied with the Code.
As a last resort, contact the NSW Department of Fair Trading who’s responsible for the Property Stock and Business Agents Act under which the conduct of all Strata Managers is regulated; just don’t expect too much action as I’ve in the past found the Department to be largely impotent in investigating such matters.
Although there is no retrospective compulsion to comply with all provisions of the BCA however sometimes other works done on the building may require that the work be undertaken.
In other instances retrospectivity does apply eg glazing in doors, provision of asbestos reports for common areas etc.
If the matter has been raised as a safety issue, then the BC has been made aware of the matter and is required to address it even if that is a well reasoned rejection of the work. Is this a risk that the BC wants to bear?
Pistonbroke said… Is this a risk that the BC wants to bear?
Well, as alinka‘s very first post advised that the Owners Corporation (O/C) had commissioned Reports from both a Structural Engineer and the local Council with both stating that “they couldn’t find anything to be wrong with the balconies”, then YES… I’d absolutely accept the risk, particularly as it appears the two Owners are merely using an as yet unsubstantiated safety issue as the means to have their balconies upgraded at the O/C’s expense.
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