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  • #47629
    AvatarFey Knows
    Flatchatter

    I have a problem.

    Our Strata Committee just published ‘minutes’ via our Strata Manager of a Strata Committee Meeting that was apparently held on site (without the Strata Manager in attendance) a week before Christmas. Four out of seven members attended according to the minutes. These minutes came to me and another interested resident owner by email, they are not on a noticeboard. We are a Sydney strata of 36 apartments.

    The problem is there was no agenda published or circulated ahead of this meeting, either by email or on a noticeboard. Various important and touchy issues were ‘discussed’ though the minutes are fluffy and inconsequential. There are other issues just as important or even more important which could very well have been ‘discussed’ or even action approved.if this was a proper SC meeting.

    Another like-minded resident and I would like to start 2020 off on the right foot and signal our displeasure at this meeting not being properly heralded, issues not canvassed prior, and suggest the meeting was improperly held. What might we do or suggest occurs, please?

     

     

     

    #47701
    AvatarCosta
    Flatchatter

    Information on the NSW Office of Fair Trading web page headed Meetings of The Strata Committee suggests notice should have been given to all owners for the SC meeting you mention and ways this should be done. It doesn’t say what to do do if the Strata Committee and / or Strata Manager goes about things in the wrong way. I do hope a clever Flat Chatter knows and weighs in, because we have similar problems where I live all to often.

    Also, I’m sure I’ve read here on Flat Chat and in other places agendas and minutes need to be succinct and it doesn’t sound like they were in your case. Again, what’s to be done?

    #47708
    AvatarBONNIE L
    Flatchatter

    Hi , You don’t say which state you are in.

    Others may know more about this issue. A couple of queries.  Did you attend that meeting, or appoint a trusted proxy.

    On the face of what you say, looks like the strata manager could be in question and need to be held to  account on  details.   Have you asked at the firm about this? Could they be working on skeleton staff at this time?   You could also get to know other owners who may feel the same way you do, or have been at the meeting, and know more.

    Keep in mind also that lots of people are still on holidays, meaning things could be held up for that reason.  Or, sadly, be affected by the bushfires.

    Good luck!

    #47715
    Jimmy-TJimmy-T
    Keymaster

    The question of improperly announced meetings is less significant than the decisions that are made in them.

    Nevertheless, there is a system prescribed by the Act that is there for a reason, mainly so that everyone knows what’s going on and can contribute or object if they wish.

    In the case of the above “improper” meeting, I would be tempted to write to the committee members and strata managers, and say something like this:

    In view of the fact that last month’s meeting was held without due notice or a published agenda as required by the Strata Schemes Management Act of 2015, any decisions made should be considered null and void.

    In future, I would ask the secretary (and strata manager) to ensure that the meetings are properly announced, agendas distributed and proper minutes issued, under the terms of the Act, so that all owners have the opportunity to attend and observe, if they so wish, and that we know what is being discussed about our buildings and can respond accordingly.

    Apart from being good management, this will obviate the need for expensive, time consuming and disruptive challenges at NCAT when significant decisions have been made at improperly conducted meetings.

    I also call on the committee to inform the owners that such oversights will not be repeated in future.

    • This reply was modified 1 month, 2 weeks ago by .
    #48256
    AvatarEnough of Strata
    Flatchatter

    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?

    #48258
    Jimmy-TJimmy-T
    Keymaster

    At the directions hearing, the “rebels” could outline the case above and present it as an attempt to thwart the will of the Tribunal and ask that, if it happens, it should trigger a move to replace the committee with a statutory strata manager for the next two years.

    That way you will get rid of your committee and strata manager in one fell swoop.  This could still happen after the event, by the way, so it might be enough to let the committee and strata manager know that this is the plan.

    There is a danger, however, that the person presenting this could come across as a little paranoid if they don’t have evidence of this plot to offer.

    #48437
    AvatarThe Hood
    Flatchatter

    I would suggest if you have any real issue with any decision seek an interim order to restrain the OC from relying on any decision from the SC meeting of ….

    A lack of notice.
    Notice is required by cl 5 of Sch 2 (NSW) so the question becomes what is the consequence for failure.

    5   Notice of meetings for other strata schemes

    (1)  The secretary of the owners corporation of a strata scheme that is not a large strata scheme must give notice of a meeting to each other member of the strata committee at least 3 days before the meeting and to each owner.

    (2)  Notice is to be given by displaying the notice on the notice board maintained by the owners corporation or in accordance with section 263.

     

    The key to 5(1) is what does ‘must’ mean and what happens when the OC doesn’t ‘must’.
    Welcome to the absolute nightmare world of the NSW court system and their making it up as they go view of what ‘must’ means.
    Must appears over 250 times in the SSM Act and you can never know what any particular must means until some Court, typically the NSWCA, says what any particular must means.
    We have the must of s 106 which is a mandatory strict obligatory must.

    This type of must:
    ‘Must’ means ‘must’. It is an imperative – expressing necessity, obligation and compulsion. There is no halfway house; no reason for attempting to ameliorate the outcome because of the particular consequences … J Pembroke (Bakkante)

    But then we have cases like Sher Global where just about every ‘must’ in what is now Sch 1 relating to general meetings was considered procedural and there was no consequence for failing those musts.

    Then we get cracks like that in The Owners – Strata Plan No 62022 v Sahade [2014] NSWSC 3 that talk about how, for a general meeting, no notice “adversely affected that person” and strict compliance is required with the provision is required.

    28. Moreover, it is difficult, if not impossible, to imagine a circumstance where a person was provided no or inadequate notice of the meeting, yet it could be said that the failure “did not adversely affect” that person, except in circumstances where the person attended the meeting notwithstanding and waived the notice provision. I note, at this juncture, that paragraphs (a) and (b) of s 153(2) of the Act must each be satisfied in order for an adjudicator to refuse to make an order invalidating the resolution or the election. Thus, the legislative presumption, with a limited exception, is that non-compliance with any provisions of the Act dealing with the conduct of a meeting will result in an order invalidating any resolution or election held.

    It’s a dog’s breakfast the consequence of not giving notice.

    My favorite argument for no notice of a SC meeting flows from  Sch 2 cl 9(3) – the veto clause.
    (3) Decisions to have no effect if opposed by more than specified owners

    A decision of a strata committee has no force or effect if, before the decision is made, notice is given to the secretary of the owners corporation by one or more owners, the sum of whose unit entitlements exceeds one-third of the aggregate unit entitlement, that the making of the decision is opposed by those owners.

     I like to say a SC only has authority in the absence of veto because that is the effect of Cl 2 9(3).

    There can be no greater disenfranchising of the owners than to give them no opportunity to veto.
    Clause 9(3) might as well not exist if it is OK to give no notice.

    Probably no notice of a SC meeting is best explained in:
    Owners Corporation SP 67631 v Waters & Gardner [2010] NSWCTTT 343 at [19]:
    “[19] … There was consequently no opportunity for each of the lot owners to make an objection at the executive committee meeting to the proposed course of action.”

    In other words, all lot owners (including the applicant) were denied entitlements which they “possessed according to the Act and that must be an adverse effect” (Pamela Williamson v Owners Corporation Strata Plan 7348 [2015] NSWCATCD 65 at [39]).

    I would suggest using that in any NCAT application.

    Totally disenfranchising the owners, if that doesn’t warrant invalidation then we all in trouble.

    #48439
    Jimmy-TJimmy-T
    Keymaster

    I have been told that NCAT has recently refused an application for an Interim Order, on the grounds that an improperly conducted strata committee election did not constitute an emergency of the kind for which Interim Orders were intended.

    • This reply was modified 2 weeks, 2 days ago by .
    #48462
    AvatarPamster
    Flatchatter

    Hi there, I am the person mentioned in case Pamela Williamson v Owners Corporation Strata Plan 7348 [2015] NSWCATCD 65 at [39]).  I would like to add that this decision was made due to an AGM being conducted incorrectly,  not a Strata Committee meeting.

    During the time I was dealing with this particular Strata Committee , the members of which have since sold up and moved on,  they would always hold “paper” SC meetings that meant no-one could attend and observe. This seems like an underhanded way to have a meeting where contentious issues are disscussed and voted on.

    I was hoping when the Strata Laws were reviewed the issue of “Paper” meetings would be addressed and changed.  I realise Paper Meetings are useful for mundane strata issues such as voting on minor repiars and maintenance,  but they shouldn’t be used be used for serious matters.

    Sorry to say, I think you may find that your Strata Committee will resort to having Paper Meetings from now on, which is a very effective way to avoid scrutiny.

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