AGM Business arising from previous Minutes.

The strata manager is 100 percent right.

Matters arising may be a logical and, indeed, natural progression of discussions but if a specific item is not on the agenda it shouldn’t be discussed and certainly can’t be voted on.

This is to protect the interests of owners who may not realise an issue was going to be discussed, as well as to prevent the situation where issues that are done and dusted are continually revisited by people who didn’t get the result they wanted the first time around.

If a topic is unresolved then it should be put back on the agenda afresh.

I’m no procedural expert but section 35 (3) of the Act says that different items have to be treated as separate motions (apart from the multi-faceted motion to elect the committee) and motions can’t be accepted unless they have been notified previously in the agenda.

So even a motion to consider “matters arising” would fall foul of that. You could however include motions to consider items in the minutes that you think might require further discussion.  If no one wants to say anything, just move on.

35   Forms of motions

(1)  Notice of a general meeting must include, or be accompanied by:

(a)  a form of motion to confirm the minutes of the last general meeting of any kind, and

(b)  if the meeting has been convened to elect an executive committee for the owners corporation, a form of motion for the election of the executive committee, and

(c)  except in the case of a meeting referred to in paragraph (b), a form of motion of each other motion to be considered at the meeting.

(2)  The notice must clearly indicate which motions require a special resolution for their passage and which motions require a unanimous resolution for their passage.

(3)  A motion must not be submitted at a general meeting unless notice of the motion has been given in accordance with this clause or the motion is a motion to amend a motion of which notice has so been given.

I have to admit I have upset an apple cart or two by dumping a stack of motions on to the agenda just before deadline.  It was tactical – I knew if I gave he chairman enough time, he would have added counter motions to scupper mine.  But the strata manager wasn’t best pleased. And I lost anyway because the chairman had 50 percent of the vote in proxies.

The “other business” or “matters arising” motion would be ruled out of order in NSW although some schemes wait until the meeting is officially “closed” to discuss other issues but not take a vote.

Other schemes just bumble along and do what seems right.  The problem arises when someone hasn’t had their way in the discussions and starts pulling out procedural rules to prove (quite rightly) that the decision shouldn’t have been made, even if they would have lost if it had been correctly handled.

That said,as you can see below, an adjudicator can refuse to nullify a decision that was made when correct procedure wasn’t followed if they feel that it would have made no difference if due process had been observed

However, to get to that point requires time, energy and expense.  Better to follow the rules and save yourself the grief, I reckon

153   Order invalidating resolution of owners corporation

(1)  An Adjudicator may make an order invalidating any resolution of, or election held by, the persons present at a meeting of an owners corporation if the Adjudicator considers that the provisions of this Act have not been complied with in relation to the meeting.

(2)  An Adjudicator may refuse to make an order under this section but only if the Adjudicator considers:

(a)  that the failure to comply with the provisions of this Act did not adversely affect any person, and

(b)  that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution or have affected the result of the election.

(3)  An application for an order under this section may be made only by an owner or first mortgagee of a lot.

154   Order where voting rights denied or due notice of item of business not given

(1)  An Adjudicator may order that a resolution passed at a general meeting of an owners corporation be treated as a nullity on and from the date of the order if satisfied that the resolution would not have been passed but for the fact that the applicant for the order:

(a)  was improperly denied a vote on the motion for the resolution, or

(b)  was not given due notice of the item of business in relation to which the resolution was passed.

(2)  An application for an order under this section may not be made after 28 days after the date of the meeting at which the resolution was passed.

(3)  If an order under this section is made in relation to a resolution making a by-law or amending or repealing another by-law and the order has been recorded as provided by section 209, the by-laws have force and effect on and from the date the order is so recorded to the same extent as they would have had if the resolution had not been passed.

(4)  Subsection (3) is subject to the by-laws having been or being amended or repealed in accordance with this Act and to any relevant order made by a superior court.

(5)  An application for an order under this section may be made only by a person entitled to vote on the motion for the resolution concerned.