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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 - 16 through 30 (of 39 total)
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  • #54687
    TrulEConcerned
    Flatchatter
    Chat-starter

    Hi Kaindub,

    Thanks for yr insight. I may have been unclear.
    At the AGM that from memory immediately followed my objection to Mr Secretary’s move to allow one lot owner to have two representatives on the OC, with a vote each, Mr Secretary/Tsr  made clear to the OC that he would not sit on the SC if I am voted on. He convinced two seniors in the block of five that they would be “fortunate to have him with his experience as a solicitor on the SC”. The inference being it’s him or it’s me. Not both. Never mind that I was Tsr of a block of over 60 units for nearly a decade (with a committee of between 5 and 7) and after some years decided not to re-contest as I had other matters in my life to deal with.

    Naturally he had the lot he was batting for (who wanted 2 seats) in his pocket, so with his vote and the two seniors:  the vote was 4:1.
    Oddly, from that AGM onwards I recall he always asks me before the meeting takes place if I have a recording device with me. Once I brought a friend to the meeting and Mr Secretary grilled my friend with the same question, in addition to inspecting my friend’s very large key ring for possibly a minute recording device.

    As to your point on numbers on the SC: Mr Secretary begins discussion at the AGM on the topic asking who wants to be on the SC. At the 11/2020 AGM three hands went up via a ZOOM meeting – Mr Secretary, Madam Chair and me. He then asks “how many people should we have on the SC” and volunteers “2” and we vote on that number. 4 support a 2 member SC. I object and ask for 3 members on the SC. We vote and I alone support 3 members.  We then vote on which 2 of the 3 nominees will go on to the SC. Naturally I alone voted for myself.

    I found it quite disturbing that while all 5 owners were to independently join the AGM via ZOOM, presumably from their own abodes, Mr Secretary arranged to have the 2 seniors sit with him at the meeting, held in the home of one senior. The seniors seemed overly compliant with Mr Secretary.

     

    #54685
    Jimmy-T
    Keymaster

    In a block of 5 if all lots nominate one person every nominee will be on the committee, unless a motion is passed to limit the numbers of committee members.

    Just to clarify, under the Regulations, the process is that the chair announces the nominations made in writing and calls for nominations.  Then they must take a vote on the number of people required on the committee.  If the nominations exceed the number of seats, an election takes place.

    So it’s nominations first, size of committee next, then a poll if necessary to choose the members.

    This is a tried and tested way of a tightly held committee restricting its membership, especially in a small scheme.  In this case, it is possible that three owners could nominate themselves, vote to have only three seats on the committee and then elect themselves to those seats.

    I like the idea that in small schemes all owners should be on the committee by default, but how small when the Act allows a maximum size of nine?

    #54683
    kaindub
    Flatchatter

    May be a final comment from me.

    You can’t in normal  circumstances be “unvoted” from a committee

    The act says the maximum number of  committee members is 9. In a block of 5 if all lots nominate one person every nominee will be on the committee,  unless a motion is passed to limit the numbers of committee members. But then a vote needs to be taken to elect members from the nominations.

    I agree that Jimmy’s last advice is pretty correct.

     

     

    #54673
    Jimmy-T
    Keymaster

    I was going to say that the real problem here is a lack of transparency and accountability, rather than dishonesty, and while that may be the case, it’s becoming apparent that there’s a clash of personalities at the heart of this.

    I sympathise.  I found myself in a similar situation in the past, at loggerheads with a chair who said that he’d quit if I was ever elected to the committee.  I wasted a lot of time and energy bashing my head off that brick wall but eventually decided that I could get my opinions across by other means, via more sympathetic voices.

    They say it’s better to die on your feet than live on your knees – but then living on your feet trumps them both.  The sense of relief when you decide to stop fighting unwinnable battles and not take the bait when it’s dangled before you is immense.

     

    • This reply was modified 3 months, 3 weeks ago by .
    #54664
    TrulEConcerned
    Flatchatter
    Chat-starter

    Hi Kaindub,

    You ask:

    If you are in a block of 5, why are you not on the committee? its unlikely that if you  nominated that you would not get a seat. You then have front row access to all correspondence between the strata manager and the committee.

    I was on the committee as was everyone years ago, when it was self managed. One day I proved that Mr Secretary/Treasurer mixed his funds with the OC’s funds and that he behaved in a questionable manner. For instance, he used OC funds to buy a stove for another lot, claiming stoves were the responsibility of the OC. In fact the Chairman (who still is Chairman) also smelled something fishy and had a colleague inspect the books which proved me right and then it was decided unanimously that we hire a managing agent.

    I  remained on the committee for a short while as was everyone else, with a managing agent in place. We met at times as the SC and at times as the OC, after all 5 lots, 5 votes all attending meetings.

    But I was impeded in rejoining the committee after I disagreed with Mr Secretary/Treasurer with his move to allow one lot to have two people (being two votes) on each committee ie on the SC and OC. I made clear that on the OC if a lot owner wants two representatives, then they can have half a vote each, not one vote each. Mr Secretary/Treasurer has decades of strata experience and knew his motion was wrong in law when he made it yet he persisted, thinking I can be intimidated like others. When I pointed out that I will ask the CTTT (at the time) to rule on this motion if it is carried, he withdrew it.
    When I tried again to join the committee, Mr Secretary/Treasurer threatened others in the block that he could not work with me and would not sit on a committee if I was elected. When you consider he was talking to one owner, a senior with memory issues and another owner, also a senior who like many seniors is easily influenced by domineering personalities, both elderly folk folded like a pack of cards.

    Given my experience, which I am sure is not unique, perhaps a useful reform of SSMA is to consider all owners of small schemes automatically as members of the SC unless they themselves choose to opt out of the SC. That should improve situations like I have experienced, by ensuring I am on the SC if I want to be and those not wanting to be on the SC, can choose not to be. I think it imperative when, as in my case, the same person with a questionable history has held virtually the same position on the SC for nearly thirty years.

    #54658
    kaindub
    Flatchatter

    One question comes to my mind Truleconcerned.

    If you are in a block of 5, why are you not on the committee? its unlikely that if you  nominated that you would not get a seat. You then have front row access to all correspondence between the strata manager and the committee.

    Whilst its not  strictly to the letter of the law, smaller strata schemes tend to be less formal with decision making. With fewer owners communication channels are far less complicated and its often more expedient to do business by email.  The level of expenditure for a small strata is low so financial decisions are of low impact.

    To me you seem to be on some  crusade which for the small amount of expenditure is out of proportion with the effort your putting in.

    Why not just wipe the past, get more involved  with the committee and see what you can do to help. Its hard to change the past, especially in “small” matters like this. The committee and the strata manager will find more excuses to justify their decision. Your only hope then is a visit to NCAT and in the the scheme of things your issue is small bickies to NCAT.

    The last thing you want, especially in a small strata is to be labelled as that troublemaker.

    Perhaps this is not the advice you want to hear, but I am a pragmatic guy and believe in directing energy towards the big issues.

     

    • This reply was modified 3 months, 3 weeks ago by .
    #54656
    TrulEConcerned
    Flatchatter
    Chat-starter

    Jimmy I don’t dispute that the site in question is legitimate.

    I dispute that this strata plan receives a scintilla of benefit from this expense which was paid for by the OC. Of course I can’t speak for other strata plans Mr Secretary may be involved with.

    The facts are:

    1. s. 46 of the SSMA (as Scotlandx indicated) requires payment to a SC member be approved retrospectively by the OC.

    s.46 Payment of officers of owners corporation
    An owners corporation may pay to a person who is an officer of the owners corporation or another member of the strata committee of the owners corporation an amount determined by the owners corporation at an annual general meeting in recognition of services performed by the person for the owners corporation in the period since the last annual general meeting.

    This failed to occur.

    One does not need a Winston Terracini or a Chris Murphy to argue that paying a person’s subscription is synonymous with paying him directly and that payment without the OC’s approval – let alone discussion – is a breach.

    2. Mr Secretary has no practical role at this agent-managed strata. The agent was delegated all the functions of the SC. The SC don’t accept emails and at the last AGM they RESOLVED that they do not to have to respond to emails (and they listed their subjective reasons for that).

    The SC are so uninvolved that they don’t even hold meetings where they could share the wisdom he gleans from the subscription. That’s not entirely true, they do hold a single 5 min SC meeting: being the one tagged on to the AGM, where he and another vote himself as Sec/Tsr while the other member is voted in as Chairman; and

    3. As to his alleged 62 visits to the strata plan to make repairs (again without quotes and without reports as to what, why and how), I will see if the portal I was offered to look into has documents that can shed light on these alleged visits and associated spending.

     

    Regarding inspection of records, if the portal I was given access to again malfunctions, as it did today, am I within my rights to insist on access to the original documents: invoices, emails, contracts etc in the agent’s possession?

    Thanks again.

     

     

     

    #54638
    Jimmy-T
    Keymaster

    I can’t see how a subscription to YourStrata Property is enriching himself.  It’s a legitimate web resource run by a highly qualified and experienced strata lawyer.  Why would he need it for anything else than to better understand the workings of the strata committee on which he serves?  And why would it be somehow inappropriate for them to advise him that he could claim the expense, even as an honorarium.

    As for the travel expenses, these are very small potatoes and may well be completely legitimate.  This sounds like poor reporting of expenses, at worst.  I don’t see anything terribly wrong here, apart from that.

    My dismay at the initial report was that it suggested there was no actual training or education taking place.  But why else would he subscribe to Yourstrataproperty.com?  It’s not an entertainment website.

     

    #54633
    TrulEConcerned
    Flatchatter
    Chat-starter

    Good evening,
    You may recall that I was shocked as were Jimmy and Scotlandx that a SC member of my block is having the OC pick up the tab for his “strata education” subscription.
    After asking for access to ALL of the strata’s documents, the agent granted me access to invoices via an electronic portal, which doesn’t work properly. I can only view some but not all invoices.
    I made one discovery so far. I found that the “strata education” is in fact a subscription to something called Your Strata Property. I say “I discovery” because Mr Secretary submitted an invoice that looks like a neatly typed shopping list and included two line items for Your Strata Property: $400 and $58. He did not (as far as I can see, note the portal is problematic) include a copy of the actual invoices or receipts from the publisher he would have received upon paying his subscription dues with our funds.
    The $458 was included as part of an invoice whose bottom line mentions: “All items are cost recovery total of $911” , that Mr Secretary passed to the agent (for payment to himself) after having the Chair note by hand on the invoice that she “approves payment”. I was not made aware nor can I find records of any agendas for and minutes of meetings that took place to discuss and approve this payment.

    Cunningly Mr Secretary does not list payment for his time, but only for 62 trips via the bridge (@$3 each) for which he billed $186 (he states to attend to strata repairs) as well as purchases of paint, lights, gloves etc, items whose original invoices which were never sighted by the OC nor is there any way of knowing how much of what was bought ended up in Mr Secretary’s possession for personal use.

    Interestingly, regarding the $458 subscription, on the website he signed up to, I found the following Q & A:

    Q. Can I ask my strata building to pay for my membership?
    A. It doesn’t hurt to try!
    If you are a committee member in a NSW strata or community scheme, you may be entitled to an “honorarium” – a small annual payment for your services as a committee member. Some YSP members who are also committee members ensure that the cost of their YSP membership is covered by their honorarium. If you’d like to find out more about how to claim an honorarium as a committee member….

    Q. Can my building join, or is membership only for individuals?

    A. We are currently only offering individual memberships. If your building is interested in a ‘building wide’ membership, please let us know via support@yourstrataproperty.com.au and, subject to the level of interest, we will consider offering YSP memberships to buildings…..

    As these expenses (of $458) were never discussed or approved by the OC; the fruits of the membership (papers, discussions and phone calls) were never shared with the OC; as no honorarium was ever discussed or approved by the OC; as the provider herself makes clear: the service is “for individuals”, am I correct to conclude that Mr Secretary is brazenly breaching the SSMA and enriching himself?

    I look forward to your guidance.

     

    #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.

    #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.

    #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.

    #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.

     

    #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.

    #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.

     

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