Special Resolution

Paddy – an interesting question!

I note that Stivcro (Post #2) observes that re-painting of the Common Property (building) MAY require a special resolution, and perhaps that’s because like me he/she thinks that it’s not all that clear.

My interpretation is that even if a proposed new colour scheme is a radical departure from what’s there now, the passing of an ordinary resolution at a General Meeting would suffice, as Sect 65A is intended to apply (although not so clearly) to structural changes that add to or alter the common property.

Even though painting too can “alter” the appearance of the building, that can if necessary be more easily reversed than those types of structural additions and alterations that I believe Sect 65A is intending to capture, so I agree with your Strata Manager.

Details of the proposed colour scheme must be distributed with the Agenda, and in order to obtain a more definitive vote you could call for a “poll” to determine that ordinary resolution on the basis of the units of entitlement of those Owners in attendance incl. by proxy (>50% to pass).

@Stivcro said:
Sounds like you need a new Strata Manager, from what you described, yes it falls under s65A which may require a special resolution.

Not necessarily…

See, for instance, Collins v OC SP 18027 [2013] NSWCTTT 273 at [13]-[17]:

“13    The nub of the problem concerning the replacement of the carpet is whether that action falls under section 62 or 65A of the Act. The parties were informed this would mean that the hearing was one focussed only on statutory interpretation, and no other issues. Both parties agreed that they had filed and served all documents on which they relied, neither wished to adjourn either proceedings and that they were ready for a hearing there and then.

14    Mr Robinson took the Tribunal through the extensive history of the matter. It became apparent that there may be some lot owners who were not fully apprised with all facts of the replacement, including whether the current rose coloured carpet was still available, before a plebiscite was taken. The vote was close; however, the executive committee have continued to make arrangements to have the neutral coloured carpet laid in Grange House.

15    Mr Le Page grasped the nettle and took the Tribunal to a New South Wales Supreme Court decision which involved the replacement of a wooden floor, being common property, with a concrete slab. In Stolfa-v- Owners Strata Plan 4366 & ors [2009] NSWSC 589, Justice Brereton pointed out in paragraph 68 of his reasoning that even though the replacement of a wooden floor by a concrete slab may well have involved a superior construction, he was satisfied that insofar as the substitution of that concrete slab for timber flooring was concerned, it constituted the keeping of common property in good and serviceable repair. As such, this was done in accordance with section 62 of the Act and it did not require the authority of a special resolution under section 65A.

16    The Court of Appeal affirmed the primary judge’s findings, claiming that the judge was correct to reject the submission that the work fell under section 65A. The Court of Appeal then went further and declared, “The statute should not be construed so as to require the Owners Corporation to act, but then to place a voting barrier in its path in complying with the statute”.

17    The Tribunal is satisfied that the proposed replacement of the carpet falls squarely under the auspices of section 62. The Tribunal acknowledges that the executive committee, in an effort to placate alarm at the possibility that the replacement carpet might be of a colour which could disturb some of the lot owners, went to the trouble of calling meetings, displaying samples, and conducting a poll to ascertain, if possible, the will of the majority. It was under no legislative requirement to do so. The executive committee could have acted arbitrarily but should be congratulated for seeking to ascertain the wishes of the residents of The Grange.”

But I wouldn’t rely on this decision, as it is clearly not binding on other Tribunal determinations. Nevertheless, it is an interesting perspective.