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  • #54378
    TrulEConcerned
    Flatchatter

      Hello, at a recent AGM, two owners (of whom I am one) complained about the absence of details in financial statements offered in the agenda by the managing agent.

      The two of us were assured that if we want more details eg a listing of payments made by the strata and lot owners’ levy ledgers, all we need do is ask and the agent shall email it to us immediately, “as it’s easily available, captured by the software used”.

      The two of us accepted that.

      However it is now 2 days since the Chairman confirmed my emailed request for specific details to be sent to me. He stated that he and the agent need to discuss my email with the rest of the SC. No time frame was mentioned.

      My questions are:

      1. What exactly is there for the SC and agent to discuss? Can the SC deny my request? If so, on what grounds?

      2. Can the SC trot out the same lame excuse they trotted out in the past, being: “that sharing lot owners’ individual ledgers with all owners is a breach of lot owners’ privacy”. Note, back in the day NSW Fair Trading told me that is a load of baloney (not to mention a breach of the NSW SSMA) and when I told the EC (as it was) that if the details are not sent to me pronto I will take the matter to NCAT where they can explain to the Member exactly on what grounds the Treasurer and Chairman are denying me the information, they sent me the details post haste.

      Please advise what sections of the Act I need to quote in my application to NCAT, if the super secretive SC remains unwilling to share financial information with those not sitting on the SC.

      Thank you.

       

    Viewing 15 replies - 1 through 15 (of 39 total)
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    • #54390
      kaindub
      Flatchatter

        Its section 182. All Owners have the right to view all records of the OC

        If they want to be silly buggers just look at section 183, pay the fee and away you go.

        Make sure you look at the emails. Usually these are on the strata managers computer. They may claim privilege but the are also records of the OC.

        #54402
        Jimmy-T
        Keymaster

          Kaindub is absolutely right.  FYI: Owners corporation records are not covered by privacy laws.  Just this week the government passed an amendment that excludes the votes in secret ballots from being available under section 182 rules – which shows how deep it goes.

          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.
          #54406
          TrulEConcerned
          Flatchatter
          Chat-starter

            Thank you both for your wise and speedy replies.

            JT, I like the your point on privacy.

            Kaindub, I like the point on emails. I never thought of that. As to your comment on them playing “silly buggers”, would you believe that there are two solicitors on the SC?

            I am sure that in due course after I receive the required documents, I will have more questions, so will return to this thread at that time.

             

            #54442
            TrulEConcerned
            Flatchatter
            Chat-starter

              Thank you both for your advice.
              Before I had a chance to share your points with the agent, he emailed me what I requested (3 days after I initially asked). It seems that the SC saw the light and realised it was unable to deny me what I was after.

              A quick reading of the information provided reveals that a member of the SC billed the OC for “continued education” in the area of strata management in addition to his (the SC member’s) labour and material for “repairs”. Note the SC was given the right to spend certain funds on the strata’s upkeep without referring to the OC for approval. But I recall that OC members were to be informed ideally before the event of such expenditure. These debits to the strata’s a/c are over 6 months old and were never brought to the OC’s attention.

              My focus is on the “strata education” expenses.

              Given:

              1) All management functions are performed by the agent;
              2) SC members don’t even want to be bothered by owners at any time. They insist that all communication/requests etc be directed to the agent at all times; and
              3) SC members never sought nor received permission to bill the OC for what smacks of self improvement expenses

              can SC members charge the OC for matters that are unrelated to the management of this strata?

              If “yes” then, can I insist they make available to all owners all the literature and resources they are privy to, including but not limited to access to education portal, seminars, events etc? And if my request is denied, can I insist they repay what I consider an unauthorised withdrawal?

              If “no”, that is, if what they did is indeed unlawful, can the SC save themselves by retrospectively approving these expenses? Even though there is not a single valid reason for milking the OC. (Note they have the numbers, ie votes, to do anything they want at the strata).

              I look forward to your views.

              #54447
              kaindub
              Flatchatter

                Trule concerned

                I think you are making assumptions which may not be true.

                Unless restricted by the OC the committee can spend money without approval for the benefit of the strata. A committee member getting some strata training id of benefit to the OC. Even if the strata manager is delegated all the functions the committee is still responsible for overseeing decisions as well as making some.

                I’m sure if you ask NICELY the member would share any materials they have.

                Unless you have some basis for your suspicions don’t go looking for transgressions.  Its the quickest way to become labelled that crazy person.

                In the case of payment for work done, that’s a tricky one. Committee members are generally not paid for their time. However the member may be doing maintenance work around the property which would normally done by paid  contractors. IMHO if he won the job on a  competitive tender and had the necessary qualifications and was approved by the committee then i see that its a benefit for the OC to pay them for the work

                #54451
                TrulEConcerned
                Flatchatter
                Chat-starter

                  Good morning Kaindub,

                  Thanks for the reply.

                  1. “Strata Education”

                  The committee member in question has been in his position for over 20 years. He is a very knowledgeable solicitor. The only possible explanation I can come up with why I see this expense for the first time is that his employer is no longer paying for this subscription, hence he is billing the OC. Until we hired a managing agent, he ran the strata for many years on his own, without billing the OC for such “education”.

                  As to the only other SC member, in case you may think the “professional education” is for her benefit, please note that she takes no part in managing the strata, she is quite senior and has no interest in matters such as “professional education”. Whenever any owner has I a query, small or large, she always refers them to the agent who often consults the solicitor.
                  But I will take your suggestion about asking nicely for access to all the resources paid for by the OC. Let’s see how he responds. I mean, how the agent responds as the SC member, as mentioned already, doesn’t want to be bothered by owners.

                  2. Strata Maintenance

                  As to the SC member billing and being paid by the OC for “maintenance”, you wrote: IMHO if he won the job on a  competitive tender and had the necessary qualifications and was approved by the committee then i see that its a benefit for the OC to pay them for the work.
                  Please note: he did not provide a quote to the owners; neither he nor the agent sought tenders; neither the SC member nor the agent informed the owners that he was going to do work; he did not provide the owners with an invoice, presumably he just provided it to the agent who paid him; neither the SC member nor the agent inform the OC of when what I consider is an “irregular” payment was made. Had I not asked for certain financial reports, I would not now know he was paid 6 months ago.

                  Who knows how much he was paid over time in secret?

                  Do understand that my concern is not that work was done. It most probably had to have been done, but in the absence of quotes from the SC member, the absence of a competitive tender and secrecy of the agent and the SC member of concealing this “irregular” payment(s), the OC is poorly served. Unsurprisingly, transparency in the financial relationships of committee members  was what I always pushed for when I was on the EC (back in the day), before I was pushed out of the EC.

                  #54457
                  scotlandx
                  Strataguru

                    Section 46 of the Act provides that the OC can pay a Committee member an amount determined by the OC at an annual general meeting in recognition of services performed by the person for the OC in the period since the last AGM (it’s retrospective).

                    The Committee does not have the power to pay a Committee member for services performed for the OC, that is a matter reserved to the owners in an AGM, section 36(3), and it has to be determined retrospectively. It doesn’t matter that the Committee has the power to spend funds up to a certain amount, the issue is they have paid a Committee member, and they don’t have the power to do that. So the payment to the Committee member is a breach.

                    As for the “continuing education”, you have to be kidding me.

                    #54484
                    TrulEConcerned
                    Flatchatter
                    Chat-starter

                      Scotlandx,

                      Thanks for your insight. Much appreciated.

                      I will wade through the documents I received from the agent and return to this thread when I discover more “irregularities”.

                      Thanks again.

                      #54499
                      TrulEConcerned
                      Flatchatter
                      Chat-starter

                        Hi Scotlandx,

                        Thanks for the reference to s36 of the SSMA regarding pmts made to SC members. I also found s46 applies.

                        I have a related question: at the last few AGMs we passed a resolution that there are “No matter shall be a restricted matter that can only be decided at a General Meeting”. Does that include pmts made to SC members (which as mentioned, were made without informing the OC, without agendas and minutes being sent to OC members listing the pmts and confirming the SC’s approval of them, for what looks like self education purposes, “strata education”).

                        If the “No restricted matter” AGM (passed) motion does not invalidate s.46 then I suppose my next step is to ask the managing agent for details of the pmts and a copy of the minutes approving pmts. After all, the agent can only pay a SC member on presentation of minutes, right?

                        If the “No restricted matter” motion invalidates s.46 then how do you suggest I challenge the “strata education subscription” pmt that the SC member billed the OC for.

                        Thanks again.

                        #54506
                        Jimmy-T
                        Keymaster

                          At first glance, that motion seems to be invalid.  There are decisions established in the Act that can only be decided by the owners at a general meeting, such as special resolutions.

                          There is a difference between that and, for instance, Section 110 which says … “with the approval of the owners corporation given by resolution at a general meeting.”

                          In that case, the General Meeting can resolve to authorise the committee to make all appropriate decsions on its behalf  – the apprval has been given BY resolution OF the general meeting

                          However, the wording of some sections of the Act are slightly but significantly different.  For instance Section 103 -“Legal services to be approved by general meeting” says “An owners corporation or strata committee of an owners corporation must not obtain legal services … unless a resolution approving the obtaining of those services is passed AT a general meeting of the owners corporation.”

                          Now, I am not a lawyer and this is not legal advice, but I think there is a difference between “by” and “at” that blows the resolution you described out of the water.

                           

                          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.
                          #54508
                          scotlandx
                          Strataguru

                            A resolution of the OC can’t override the Act, so to the extent that a resolution purports to cut across the requirements of section 36(3), it has no effect.

                            In other words – if the Act requires payments to a Committee member to be approved retrospectively by the owners in a general meeting, then that is what has to be done.

                            I suggest you go to the strata manager and ask him/her why they believe it is ok to make payments to the Committee member when the Act requires approval of the payments by the owners in a general meeting. The minutes of any meeting are irrelevant.,

                            The strata education issue is slightly different, as it could be characterised as reimbursement of expenses. However, you could ask for details of the “education”, and query how that relates to the person’s role as a Committee member and whether it is necessary.

                            #54519
                            TrulEConcerned
                            Flatchatter
                            Chat-starter

                              Good evening,

                              Thank you Jimmy and Scotlandx for your wise counsel. As I understand it, payment to SC members for work they claim to have performed and what smells like dubious education expenses, can only be approved after the event at a general meeting of the OC. So a SC meeting (even if it was held, which to my knowledge never took place) does not have the power to pay the SC member, let alone an email from one SC member to the agent (in the absence of an SC meeting) instructing the latter to pony up the dosh.

                              I will chew your posts of today (18/02/21) over the weekend and email the agent as you suggest. I am tempted to also follow Kaindub’s advice of asking the agent for copies of emails relating to these payments, given Minutes of meetings – which are irrelevant in any case as Scotlandx argues –  are unlikely to exist given no meetings took place.

                              In the first instance I will seek a copy of invoices tendered to the agent and a breakdown of those invoices.

                               

                              #54586
                              TrulEConcerned
                              Flatchatter
                              Chat-starter

                                Greetings again Jimmy, ScotlandX and Kaindub (apologies if I missed anyone),

                                I looked through the cash payments journal again and over the weekend wrote to the agent asking for:

                                (a) Copies of invoices in six instances (3 of payments made to one SC member and 3 payments made to 2 contractors);
                                (b) An explanation by the agent for each of the 6 payments made (including a breakdown of each invoice); and
                                (c) Copies of emails that the agent relied upon to make the payments.

                                The agent replied today indicating that he can provide this information but “there will be charges as this is outside his scope of work” and that he will revert soon.

                                I replied that I will seek advice from Fair Trading on being charged.

                                Questions

                                (1) Can he charge for me inquiring about secret payments he made to a SC member? I say “secret” because they were made several months before the 2020 AGM and never disclosed to the OC at any time. But for my recent inquiry, the secrecy of a SC member being paid would remain a secret.

                                (2) Can he charge me for asking for details about about large payments made to contractors totaling $8,500 (I consider the sum of “$8,500 to be “large”, as we’re talking about a strata of just 5 lots).

                                Bear in mind, at the AGM the agent made clear that I would receive any and all financial information I sought from him when I wanted it. There was never mention of being charged. This was one of the ways the agent tried to defuse the tension between me wanting to join the SC and the solicitor – who held the roles of Treasurer and Secretary on the pre-AGM SC and now holds the same two roles on the post-AGM SC – repeatedly blocked me from joining.

                                (3) I see no point in asking to hold a General Meeting or SC Meeting (remember this is a strata of 5 lots) because the Treasurer/Secretary (1 lot) and Chairman (1 lot) will no doubt convince the other 2 lots that my interference is unwarranted and should not be rewarded with a SC meeting.

                                What course of action should I take? All advice appreciated.

                                #54594
                                Jimmy-T
                                Keymaster

                                  Can he charge for me inquiring about secret payments he made to a SC member?

                                  There is a set schedule of fees based on the amount of time it takes to find the information and pass it on to you.  Unless the strata management contract is all-inclusive of all charges (which would be very unusual, they can charge for the work they are doing on your or anyone else’s behalf. The issue of the secrecy or otherwise of the payments is irrelevant.

                                  (2) Can he charge me for asking for details about about large payments made to contractors totaling $8,500  … the agent made clear that I would receive any and all financial information I sought from him when I wanted it.

                                  Maybe so but presumably he didn’t say it would be free of charge.  You are creating work for them and they’re entitled (by law) to charge for it.

                                  (3) I see no point in asking to hold a General Meeting or SC Meeting (remember this is a strata of 5 lots) because the Treasurer/Secretary (1 lot) and Chairman (1 lot) will no doubt convince the other 2 lots that my interference is unwarranted and should not be rewarded with a SC meeting.

                                  Well, that is your first course of action and you’ve just closed it off.  Have a meeting, get all the allegations and questions on record and if the outcome isn’t satisfactory you can always apply to NCAT to have the culprits removed from the committee.  If you don’t follow procedure, then you look like a troublemaker rather than a problem solver.

                                  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.
                                  #54596
                                  TrulEConcerned
                                  Flatchatter
                                  Chat-starter

                                    Jimmy, thank you for your prompt feedback.

                                    I considered your response, did some more reading on the matter and spun a yarn with NSWFT.

                                    Notwithstanding the agent did say at the 11/2020 AGM that I would receive any and all information whenever I wanted, at no charge to me whatsoever, his reply to my email makes clear that he is able to supply me with the information I seek, but will charge me.

                                    I replied that if his charge exceeds $31, then not to bother answering my questions. Instead, I will seek access to all of the OC’s records by way of an inspection, pursuant to s.183 where the fee is $31 for the first hour. Of course if material that should be in his possession is unavailable to me, that would be a breach of the Act. (Note a few years ago, with another managing agent, but at this same strata plan, with the same SC in place, my inspection of records at the agent’s office was hampered by the inexplicable unavailability of bank statements).
                                    Coming back to what your suggestion of asking for a General Meeting of the owners – which if unsuccessful, will point the way to apply to NCAT to have the culprits removed – I will ask for such a meeting after I have inspected the records.

                                  Viewing 15 replies - 1 through 15 (of 39 total)
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