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I have noted two special by-laws registered on a Strata Plans which are clearly invalid.
One, created in 2010 relates to the keeping of animals in Lots, and is contrary to s137B “Keeping of Animals” (SSMAct 2015)
The second is relates to maintenance of Child safety window devices and places the cost of maintenance on the Lot owner and not the Owners corporation. This is invalid as it is at odds with recommendation 113 in the report on the statutory review of Strata Schemes Development Act and Strata Schemes Management Act 2015, which states:
“Clarify the provisions on window safety devices in the Management Act to make it clear it is an owners corporation responsibility to ensure that the devices are maintained”
I am doubtful the current Strata Manger and committee will take any action to repeal these by-laws any time soon, and it may require a motion by a lot owner to be put at the next AGM.
Does such a motion require a 75% majority for a repeal or just a simple majority.
The other alternate is lodge a dispute and start mediation / take tribunal action, which is the least desired option.
Surprisingly, when I came onto Flat Chat today, the topic of “How can we get a Royal Commission into strata managers” came up, as a recent topic, which started in 2019.
I have in the recent 6 months had issues with 2 different Strata Mangers (and Committee members) who have not acted appropriately, and in the best interests of the Owners Corporation. The first cost that strata about $60k unnecessarily, and the people involved are still in place and unaffected.
Regretfully, the other Lot owners did not want to be involved. The second involved a former owner (and for a short time a Committee member), now a tenant (had to sell), who at 66yrs with only a primary school education, a very low IQ, and with great difficulty reading and writing as he suffers from dyslexia, was being picked on by the committee members (facilitated by the S/Mgr) in relation to his trailer being parked on common property.
They took him to Fair Trading mediation & when that was unsuccessful, the matter was listed with NCAT for a hearing (this month). That matter was withdrawn after I stepped in and assisted, by seeking information on his behalf from the S/Mgr, which showed there was actually no case, proper procedures were not followed, and the involvement of the S/Mgr & the licensee not consistent with the NSW Act.
The fellow wants the matter raised with the Minister, (considers the action was taken out of spite, for him exposing the committee’s & S/Mgr’s irregularities in the past) and has approached the local state MP, who’s staff are preparing a letter for the Minister (which I will get a chance to assist with). Maybe there will be a result, but most likely will be thwarted by bureaucrats.
Having read the other messages on this topic I agree with all responders that nothing will be done, BUT ONLY IF YOU DO NOT TRY TO FIX THE PROBLEMS. Its amazing if you resolve to do something and persist, you often will get a result.
May I suggest that Jimmy Thompson, (should he be willing) arrange a meeting of Flat Chat members who have an interest in getting change effected, and want to turn the heat up on this issue, AND for those willing (with their own verifiable accounts of problems) to approach the media (preferably TV) to see if an expose can be run. Maybe no Royal Commission, but change is possible if the political pressure ramps up through media .
I certainly would be willing to be involved. Persistence, it appears, does get results.
This question relates to NCAT:
There is an application on foot to remove all committee members for not acting appropriately in their capacity as a committee member.. The NCAT directions hearing is shortly. It appears that the strata manager has come up with a brilliant scheme to call an EGM and get them all to stand down, to be replaced by a “friendly owner” who will serve as the committee member for a couple of months until the AGM is due. The understanding is that as the resigning committee members at the time of the hearing will not be committee members and so they cannot be removed, because they are no longer committee members, and so the case falls over. The understanding is that at the next AGM they will be re-elected to the committee, and continue as usual. I am advised, the case will not be able to be re-commenced. Its clearly a scheme aimed to defeat an action from proceeding.
The S/Manager has become “creative” in trying to protect these people.
Has anyone any thoughts on the matter?
Jimmy – Quite reluctant to go into detail on matter but some info may give show the dilema: – Really do not want to get sued (aware of recent cases & your note of caution on such matter). However will give some info so you can understand, with the desire it won’t get posted (as I may be identified). A blind response (without my data -if you think appropriate) may help, but will understand if you choose to discard the post completely as not appropriate for this forum.
While reluctant to provide important details here goes: There was a proposal to change all balustrades on an 18 Lot complex put up in a personal capacity by a C’tee Mbr which would also add Privacy screens as identified from the single quote at an EGM <span style=”display: inline !important; float: none; background-color: #ffffff; color: #333333; cursor: text; font-family: Georgia,’Times New Roman’,’Bitstream Charter’,Times,serif; font-size: 16px; font-style: normal; font-variant: normal; font-weight: 400; letter-spacing: normal; orphans: 2; text-align: left; text-decoration: none; text-indent: 0px; text-transform: none; -webkit-text-stroke-width: 0px; white-space: normal; word-spacing: 0px;”>(Special Resolution)</span>. B<span style=”display: inline !important; float: none; background-color: #ffffff; color: #333333; cursor: text; font-family: Georgia,’Times New Roman’,’Bitstream Charter’,Times,serif; font-size: 16px; font-style: normal; font-variant: normal; font-weight: 400; letter-spacing: normal; orphans: 2; text-align: left; text-decoration: none; text-indent: 0px; text-transform: none; -webkit-text-stroke-width: 0px; white-space: normal; word-spacing: 0px;”>alcony safety issues were raised as an important reason. C’tee Mbr proposing wanted in addition screens all round (to improve value) – Prior, that owner /C’tee mbr complained of sun reflection from a neighbouring roof to their Unit. The Mtg rejected the proposal -</span> Nil in favour. Mtg wanted a Structural Engineer to provide a report on balconies (we wanted to know exactly what the issues <span style=”display: inline !important; float: none; background-color: #ffffff; color: #333333; cursor: text; font-family: Georgia,’Times New Roman’,’Bitstream Charter’,Times,serif; font-size: 16px; font-style: normal; font-variant: normal; font-weight: 400; letter-spacing: normal; orphans: 2; text-align: left; text-decoration: none; text-indent: 0px; text-transform: none; -webkit-text-stroke-width: 0px; white-space: normal; word-spacing: 0px;”>claimed</span> were) & based on that get quotes for “required repairs” (there could have been several options, Vs full balustrade replacement). S/Engineers report rec’d: Did not note any safety issues; An unusual reference stated the report was “to report on the slabs PRIOR to balustrade replacement” (quite different to what was understood as No decision had been taken to change the balustrades). It was also NOT consistent with the W/Order (subsequently located) issued to the S/Engineer which referred to check for “Repairs” required. After all work was completed, the S/Engineer was queried on his “Purpose” report reference & he advised the then S/Mgr verbally advised this change. (a big Issue). The S/Engineer’s report did not note it was a verbal instruction. The recommendation / scope of works was:- “Balustrades should be replaced with a selected proprietary balustrade system to BCA requirements designed / installed to Aust Standards”. Quotes were to be sourced based on the S/Engineers report/ Scope of works & presented to next AGM for approval. Quotes for the change of Balustrades were sought – initially 2 were rec’d (both without Privacy Screens) – with 2 more pending at the time of an unofficial C’tee Mtg to discuss quotes was arranged, approaching the AGM. (No official C’tee M’tgs’ since 2016). All C’tee M’brs were aware Privacy Screens <span style=”display: inline !important; float: none; background-color: #ffffff; color: #333333; cursor: text; font-family: Georgia,’Times New Roman’,’Bitstream Charter’,Times,serif; font-size: 16px; font-style: normal; font-variant: normal; font-weight: 400; letter-spacing: normal; orphans: 2; text-align: left; text-decoration: none; text-indent: 0px; text-transform: none; -webkit-text-stroke-width: 0px; white-space: normal; word-spacing: 0px;”>were contrary to the Recommendation / Scope of works) & af</span>ter all the work was completed (see below), access to E-mails indicate the C’tee Mbrs were aware Privacy Screens were going to be ADDED as a quote requirement. A record (E-mail) shows S/Mgr being advised P/Screen would be included in quotes by one C’tee Mbr. Quotes accompanied the motion (which was an Ordinary resolution) for the AGM to change the Balustrades, which stated the all quotes are “in accordance with Structural Engineers recommended Scope of works”. (Which they were not . ie That was a false / misleading statement, as there was no reference to P/Screens). Here we see an additional irregularity – Either the C’tee directed the Motion wording or there was possibly collusion. One quote stated that privacy screens were included per instruction issued on (date) by the strata representative (C’tee Mbr)- with the contractor probably covering himself as his quote request stated as per Engineers report & P/Screens were not listed. At the AGM the Motion was an Ordinary resolution, but the P/Screens being added required a Special Resolution, and the matter was challenged. The then S/Mgr advised the meeting – if not passed immediately will call an EGM in 2 weeks and it will pass then as a Special resolution. [If the same number of Owners attended in 2 weeks it would not have passed due to votes and proxies available at the AGM]. Few other than C’tee members attended. The Motion passed & later new balustrades with P/Screens were installed. The quotes left 2 Lots without P/Screens and a Lot owner complained he did not get his, so one C’tee member decided (on own initiative) to add 2 more for about $3,500. The Total cost was abt $60k for all work with the P/Screens – about 1/2 of the total cost of the work. Most Lot owners were and are still unaware of what happened. They should have been appraised of all the circumstances and had an opportunity to vote on that basis but they were totally left out of the loop. In my view there has likely been a breach of S37 C’tee member duties.
I decided that I did not want to be represented by 2 of the 4 C’Tee Mbrs still involved and sought confirmation in letters via the new S/Mgr about the unofficial C’Tee M’tg where I believed the decision to add P/Screens had likely been made and their part in it. I did not get an answer to my questions but did get an aggressive response. I was of the view that NCAT might possibly deem their actions inappropriate and remove them. Foolishly I provided all the supporting evidence in the data for mediation, to subsequently notice that s 223 (2) appears to prevent this information from being used at NCAT.
Then I blew it at Mediation.
I believe there will be a motion at the next AGM (Special Resolution) to retrospectively approve that the Privacy Screens. (This is what I referred to in my original post as an attempt to put things right).
I can only see difficulties in removing the C’tee members who want to hold on.
Disregard if you think it is not appropriate to relate.
Thanks for the advice. it is appreciated. It would appear to be the latter.
Hi Moderator : The post appears to have a considerable amount of additional computer script included vs that originally posted. Thanks
Thanks Lady Penelope & Sir Humphrey, – its actually related to something that has already happened. Last year a GMtg passed a motion to replace balustrades (issue with that – could have been repaired).
Quotes were presented at the Mtg as an Ordinary resolution (choose between the quotes received) & all included “Privacy Screens” (which were outside an Engineers recommended Scope of works). After it being challenged, the SM proceeded and it was passed (few attended). (From the above clearly a breach).
1 Mth after the Mtg, the Ctee member who was pushing this resigns from the Ctee (still an owner).
The work are complete and from the info available to me the owners appear to have been dudded, and there was likely an nice arrangement between the SM & the Ctee member who resigned. I want to get on Ctee @ next meeting (soon) and do a proper investigation, & try to recover funds spent un-necessarily if possible & bring people to account.
What I really need is to be able to talk with a person who has been in a similar situation to get some tips, as the Strata is not flash with $ now & I will be in uncharted waters. (NSW <20Lots)
Greatly appreciated Jimmy, Thanks.
No wonder it was hard to find. The query did relate to changing the external appearance of the building, so that gives certainty. Thanks again.
18/05/2018 at 12:22 pm in reply to: No Committee Meetings after delegation of functions to SM #20194Thanks for your input Jimmy.
There is only me and one other Lot owner who has a concern, the others who attend meetings (most never have) are either Committee members or lack understanding of the implications and just go with the flow, and accept the advice of the Strata Mgr, as that person’s business is Strata & I am just on old retired pain in the neck.
The last AGM passed a resolution to accept one of a number of quotes to replace balcony balustrades which was recommended by a Structural Engineer, however one Ctee mbr liaised with the contractors for quoting, and added metal sun screen Louvers into the balcony quotes (which were not originally part of the external appearance). Previously that Ctee Mbr erected a sun screen on their balcony (against the by Law) and it was removed after a complaint. All the new balconies now include sun screens, at a cost estimated at about 1/2 of the total cost. There is now very little money left in the Capital Fund.
Do I think the majority of Lot owners have been set up by this Ctee Mbr who now gets the sun screens that were previously declared inconsistent with the appearance of the building (By-law), and who will not hold formal Ctee Meetings. Yes as that person negotiated the specification for the quotes which was beyond the scope recommended by a Structural Engineer.
I believe if this matter went to NCAT the Ctee Mbr and those supporting Ctee Mbrs may be found to not have acted in the best interest of the Owners Corp, but self interest. A friend considers it could be “fraud against the minority” & at least one Ctee Mbt is likely to have breached a fiduciary duty. However, I am reluctant to take the matter in this direction as almost all interested Lot owners are on the Ctee and their replacement would be an issue, plus it will further deplete Strata Funds as the Ctee Mbr would want the OC to pay for legal representation at NCAT, and most Lot owners are simply not interested.
If I took the above to NCAT, its at my expense for “uninterested co-owners”, and if won & then the decision was challenged would incur cost all the way to the Supreme Court, which would make it a poor decision. Even the other person who supports me says it is not worth it.
The Strata Mgr appears to be in lock step with the Ctee Mbr involved.
This is why I sought advice on actual cases (from case law) that could be provided to the Ctee & Strata Mgr to get formal Ctee Mtgs happening and Lot owners informed, to validate to those Lot owners who blindly follow the Strata Mgr’s advice, and to provide a paper trail. Who knows what else has happened / will possibly happen that we will not be aware of.
Thanks Lady Penelope. I am very much in your debt.
Winston
Thanks Lady Penelope & Scotlandx for your input – greatly appreciated.
A second look and re-reading of the Agenda items and attachments (quotes), while being in essence as indicated above, may need a slightly different approach.
The Motion is actually: “That the Owners Corporation review and accept one of the quotations received to carry out the necessary balcony works to all balconies on accordance with XXX Consulting’s amended report (attached)”.
Quotes ranged from $53k to $87k.
Problem is that the XXX Consultants report DID NOT recommend Shades / Screens but each quote included them, presumably from a schedule of works provided. Only one has detailed cost breakup.
I still believe the Motion is OUT OF ORDER and needs a separate “Special Resolution” to cover the addition to Common property.
The consultants report noted in its preamble “The purpose of the inspection was to identify any areas of the slab for repairs prior to balustrade replacement”, indicating to us that the decision to replace the balcony has already been made. It did note some issued with some balconies (not all).
At a July EGM, a similar motion was proposed (with a single quote which included shades / screens sourced by the Strata Secretary) and was defeated, with the meeting requesting the SM to find out what the specific problem was with the balconies, and report back.
Its now appears to have developed a life of its own in line with the Secretary’s apparent desire (new balconies & shades).
I believe the SMgr at the AGM is unlikely to permit a change to the motion, and another Lot owner has suggested a Lot owners register a dispute for mediation with NCAT on the matter prior to the AGM to get the issue in a situation where it will be harder to circumvent.
Also the Current Committee does not hold meetings (suggested by the SMgr) and we believe there are many things that have been done which would normally require meetings. Lot owners are in the dark.
I sent a Motion to the S/Mgr well prior to the agenda being sent out requesting a Ctee member give a verbal summary of matters dealt with, but it (cheekily..) did not get onto the Agenda.
I have formed the view that it is likely that two parties are being cheeky… as you put it Lady Penelope, but it has serious consequences.
Your additional input would be appreciated.
Update: Just received the Meeting Agenda & of the 3 Motions submitted, only 1 was on the agenda, which was to rescind the approval of the screen contrary to the By-law.
Missing was the one which requested that a Committee member provide a verbal summary of the matters dealt with during the year.
12/08/2016 at 9:08 am in reply to: AGM – Motions & related formailities to pass / defeat / defer. #25266Thanks for your good advice Jimmy,
The EC is attempting to correct the issues as identified, being the actions of the Strata Manager, to make things right.
An EGM is scheduled to correct the issues and appoint a new S/Manager. our input will be conveyed to those involved.
Thanks (Winston)
03/08/2016 at 10:51 pm in reply to: E.G.M. to vote on replacing current S/Manager who won’t supply essential info #25220Whale: Thanks for your excellent input on this matter. The Agreement was dated in 2008 and 3 months notice provision is applicable for termination, so that is covered.
The letter requesting the data on Lot owners and their Levy payment was reviewed, and although it appeared to have covered the requirements per Sect 37, it was decided to re-issue it in a format that was headed “Notice under Section 37 of the SSM Act 1996” and this afternoon was hand delivered to the office with a request it be provided direct to the Licensee, not the S/Manager.
Strange thing 30 minutes later the S/Manager provided the requested data by E-mail. (Lets call it a co-incidence).
It seems as usual your advice is gold.
Thank you (Winston)
I have read Whales Response to weemac47 and looked at Regulation 31.
It appears to me that virtually every accessible external window above 2Mtrs above ground level that can open is required to have such a device fitted. (All toilet / laundry windows appear to be 1.62M (standard) above the internal floor level and so are caught by the 1.70M level requirement).
Our Strata is currently looking at this issue and it appears that even kitchen and Lounge windows which open on to a balcony (enclosed or not) will need to be fitted with them. Is that interpretation correct? If so it seems a little of an over kill, with virtually every window opening restricted to 12.5CM.
Our Strata Manager provided a quote from a company who will do the installation of a specific type of keyed lock “on a cable” (capable of taking a force of >250Newtons), which our EC considered was a real rip-off ($5.6k for 18 units) , plus extra charges for collecting keys to access units / call back fee if no-one present when time arranged. (The locks specified can be purchased for $20 reach on E-Bay).
I understand that locking devices that can be made up by Locksmiths and capable of being installed by EC Members / Handyman, however the issue of being capable of resisting the 250 Newtons (26Kg/56Lbs) pressure needs to be considered and overcome. (Maybe an Engineers certificate).
Whale – is there any chance that this matter might be discussed at the Panel (organised by Strata Community Aust) to review Legislation Jimmy T will chair this weekend (April 30)?
Any comments on the above would be welcome. (Winston)
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