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  • #42514
    Avatar
    Tiaeki
    Flatchatter

    At our recent AGM Owner 1 attended who has a current legal letter to cease and desist from communicating with Owner 2 due to vexatious and defamatory statements made in over 60 emails. Throughout the meeting Owner 1 argued with Owner 2 at one point calling her ‘a crazy lady’. Owner 1 self-nominated for the Executive Committee and then stood for and was appointed as Secretary. Given that Owner 1 had been warned not to speak to Owner 2, could the AGM be considered invalid? What are Owner 2’s options?

    #42547
    Jimmy-T
    Jimmy-T
    Keymaster

    No.

    A legal letter is not a legal finding in a court. And there’s nothing to stop someone who has an AVO preventing them from communicating with another owner from being involved in a strata meeting (unless the court ordered them to stay a certain distance away from them).

    If there was such a legally binding document, you could take the offending owner to NCAT to have them removed from office or from the committee on the grounds that they weren’t a fit and proper person.

     

    #42562
    Avatar
    Tiaeki
    Flatchatter
    Chat-starter

    In regard to serving on an Executive Committee, how is the requirement of  ‘a fit and proper person’  determined? Given that there are over 60 emails from Owner 1 of a vexatious and defamatory nature; that Owner 1 lied at least twice during the AGM (she stated that personal items had been removed from the common property – they weren’t, and she had the approval to fix a sign on common property – she hasn’t); and that she humiliated Owner 2 at the AGM by calling her a  ‘crazy lady’, is there a case that Owner 1 is not ‘a fit and proper person’ to serve as Secretary? Who can determine this? NCAT? The Owner’s Corporation?

    #42579
    Jimmy-T
    Jimmy-T
    Keymaster

    Tiakei Wrote;

    how is the requirement of  ‘a fit and proper person’  determined?

    Well, it’s not by an accusation even if it comes in a lawyer’s letter.

    There are provisions under Section 238 of the Act, as I said before, that allow you to go and argue your case. First you need to go for mediation at fair Trading, then you progress the complaint to NCAT.

    But before that you probably need to talk to an experienced strata lawyer.

    #42792
    Avatar
    Tiaeki
    Flatchatter
    Chat-starter

    Section 37 of the Strata Schemes Management Act states that: It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence. In the context of this  Act what does due care and due diligence mean?

    • This reply was modified 3 weeks, 2 days ago by .
    #42798
    Jimmy-T
    Jimmy-T
    Keymaster

    “Due care and diligence” would be decided in the first instance by a Member at NCAT.  You have to present them with a case claiming a breach and hope they agree.

    One argument would be that the committee members had been presented with a compelling argument, backed by evidence and legal opinion, that they were acting wrongly but contined to break the law.  Anything short of that is unlikely to fly at NCAT.

    • This reply was modified 3 weeks ago by .
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