- This topic has 11 replies, 4 voices, and was last updated 11 months, 2 weeks ago by .
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Short summery we are at NCAT seeking compulsory management and have filed our final submissions.
25% of the UE sought an EGM and one of the motions was to hold the schemes AGM, this was passed and the Strats Manager has prepared the notice of meeting. The other motion was to sack the lawyers representing the OC and that also passed. The Owners Committee is down from 9 to we think 3 as 3 members resigned and joined the NCAT action and 3 others have sold or are selling their units.
In the notice of AGM the incumbent strata manager has put the following motion into the notice of meeting, I suspect as the contract expires mid way through 2024, but is this the normal way it is worded, I’m concerned about the bit in bold. I’ve removed the name of the strata manager to avoid any potential issues in that regard.
“The Owners – Strata Plan No. 90401 RESOLVED by ordinary resolution to appoint XYZ (Agent) as strata managing agent on the terms and conditions set out in the proposed strata management agency agreement (Agreement), a copy attached to the notice for this meeting, to be tabled at the meeting or available by contacting the Owners Corporation’s strata committee (Strata Committee) or the office of XYZ and that the following be delegated to the Agent:
a) All of the functions of the Owners Corporation (other than its power to make a delegation, to make a decision on a matter that is required to be decided by the Owners Corporation or to make a determination relating to the
levying or payment of contributions); and the functions of chairperson, secretary and treasurer necessary to enable the Agent to carry out the ‘Primary Services/Agreed Services’ and the ‘Further Services/Additional Services’ as defined in the Agreement;b) With effect from the date determined for that purpose by the Strata Committee, provided that:
a. The delegation to the Agent is subject to the conditions and limitations listed in the Agreement.
b. The Owners Corporation is to execute the Agreement to give effect to this appointment and delegation;
and
c. Authority is given to two members of the Strata Committee to affix the common seal of the Owners
Corporation to the Agreement.[Explanatory Note: Authority is given to affix the common seal of the owner’s cooperation to the agreement in accordance with section 273 of the Strata Schemes Management Act 2015 (NSW).]”
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I misunderstood the original post, so my response is irrelevant and has been removed to avoid confusion.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
- This reply was modified 1 year ago by .
Good day Stu,
A few points come to mind when reading of your woes:
1. When considering breaches by the strata manager or the committee, look carefully at the SSM Act as well as the Property & Stock Agents Act (the “P&SA Act, which governs strata managers’ conduct). It is possible to file complaints under both Acts at the same time with NSW Fair Trading: one seeking compulsory strata administration and the other against the strata manager;
2. I could see nothing in your post that was in bold;
3. In every strata scheme I have been involved with, irrespective of the powers the strata manager is delegated by the OC or powers the strata manager wants to seize, those specific powers were always listed and quoted from the SSM Act’s relevant sections and those sections were an integral part of the motion. The sections most often quoted in my experience are 49 and 52, but sometimes other sections were included in the motion. Below I list the key sections of the SSM Act. Note you must look separately for what is expected of the strata manager by the P&SA Act.SSM Act
Part 4 Strata managing agents and building managers
Division 1 Appointment of strata managing agents49 Appointment of strata managing agents
50 Term of appointment of strata managing agents
51 Transfer of functions of strata managing agent
Division 2 Functions of strata managing agent
52 Owners corporation may delegate functions to strata managing agent
53 Exercise of delegated functions by strata managing agent
54 Functions of officers and strata committee may be given to strata managing agent
55 Strata managing agent to record exercise of functions
56 Exercise of functions of strata managing agent appointed by Tribunal
57 Breaches by strata managing agent
4. Often a committee may lose members, such as office bearers and those remaining may want to lean more on the strata manager, so that would prompt him with or without the aid of those remaining on the committee, to formalise his more expanded role. You did not state if those remaining on the committee are the office bearers. If say, you have no office bearers, then the strata manager – as a result of what those resigning or selling out may have said to him or by his assessment alone that there is no active committee driving the scheme – has taken charge.
Note, at all times, even with delegated power to the strata manager, the OC has ultimate control.
First comment I would make is that I do not believe the agent can place motions on the agenda. In The Owners Strata Plan no 63731 v The Bunker Pty Ltd [2021] NSWCATAP 119 the Deputy Presidents concludes that if the agent did do so and it passed then that is OK so it appears pulling the motion up before it goes that far is key. The Act is clear at Sch 1 cl 4 on who can submit a motion and the ‘no legal character’ SC doesn’t meet the criteria and the agent doesn’t as well unless the agent is an owner or entitled to vote.
Amanda Farmer, who the Flatchat Keymaster appears with sometimes, does a pod cast on this topic and concludes neither the agent or SC should be including motions.
It is a well known legal principle that when creating a class of “who can” it is often to the exclusion of all other classes; “expressio unius est exclusio alterius”.
I think Bunker is a poor decision as there is no authority in the Act for an SC or agent to include a motion regardless of it it carries names and an explanation.The wording of the appointment motion is like a lot of agreements where the agent is delegated the functions of the three office bearers and the strata committee. You motion is worded a little different but has the same effect.
If you have a hands on SC then you probably do not want to hand over the functions of the SC. If your agent like to take charge then you probably do not want to hand over the functions of the SC.
Does you agent understand he is the delegate and that the elected SC members and SC still hold power and that his delegations are not approval to run the show?This appointment motion can wait for the 2024 AGM even if the agreement ends before then as the SC can authorise extensions of the current agreement up to the next AGM if an agreement runs out mid year.
The explanatory note is a little thin on explanation.
Perhaps an interim order, a very good suggestion, should be to restrain the OC from relying on the outcome of the appointment motion until after the substantive application is resolve and that should a s 237 appointment be made then any resolution of the appointment motion is to be of no effect.No need to bring the whole AGM down.
TheHood, you wrote that you “do not believe the agent can place motions on the agenda“. I think the matter turns on (a) whether the agent has mostly been managing the strata i.e. the SC was uninvolved in running the strata and he has those powers listed in the management agreement; and
(b) Even if the the SC has been involved in running the strata, the question is “was the Secretary shown the motions before they were sent out”? Often an agent will not even bother to give the Sec or the committee what is in truth a draft of the agenda that should have the Sec or committee tick off on it before it is sent out.
TheHood you also mention that “Does you agent understand he is the delegate and that the elected SC members and SC still hold power and that his delegations are not approval to run the show“? This is true BUT I have seen agents only bend to a committee’s instructions after the countless delegations listed in the management agreement have been reversed by owners at a general meeting.
The official and only truly valid proxy form does not have check boxes and in fact only has instructions to delete whichever paragraph is not appropriate. If the paragraphs concerned weren’t deleted, then they are valid whether they are ticked or not.
Your strata manager is desperately clinging on and is doing so by misrepresenting the facts. I would be inviting him to resign before you ask Fair Trading and the Strata Commissioner to make a very public example of him. And if he doesn’t, I have the Strata Commissioner’s email address.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
In my several appearances at mediation and NCAT, I have not seen consistency applied on many issues. But I have indeed seen that mediators and the Tribunal look at documents, such as proxies – when they are not completed in a manner that conforms 100% to the letter of the law – and ask themselves “what was the intention of he or she who completed the document”?.
If the intention is clear to a layman, then the mediators and the Tribunal consider that document as though it was completed 100% in conformity with the SSM Act.
If the agent has previously been difficult and not transparent then you should list those instances in case you take the matter further.
{Tick and complete whichever applies below}
The above phrase does not appear on the official proxy form. The phrase “tick and complete whichever applies” is an asterisked reference to the options above it, allowing owners to choose the duration of the proxy. If the form had the word “below” added to that phrase it may well be invalid.
You can access the official form HERE.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Aaah, the old chocolate teapot of Fair Trading – “you must use the official form (or a reasonable approximation …)”
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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