Reena and I cover:
  • how to complete a ballot paper “in writing” during an electronic meeting 
  • the surprising item missing from our strata legislation 
  • the insurer who capitulated second time around
  • a creative solution to a long-standing noise dispute

Links mentioned:

 

6 Responses

  1. If the legislation is silent then don’t we often just defer to the common law.
    In Horsley Meetings there are a number of cases cited in relation to the agenda notice. None specifically say that where and when is required but it seems implied that where and when is required.

    For example:
    “The notice is a summons that serves as an admonition to members to perform their duty. Because a duty is laid on all members to attend on being duly summoned, no member is empowered to waive the right to receive due notice: Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corporation (1975) 11 SASR 504; 33 LGRA 70.

    If a strata meeting notice is a summons then to not say where or when seems to not make it less than a summons.
    More interestingly is that if owners are allowed to attend a SC meeting, which they are, then it would seem a notice would require the where and when otherwise the clause allowing attendance would be one where performance becomes a problem.

    It might not be expressly stated but, lots of things aren’t, a lot of things are implied.

    Citations like the following seem to also imply that where and when is required as they have the right to attend to attempt to make a ‘submission’; provided the committee approve them speaking. Even if a submission was written then some sort of time would be required; it can’t be open ended as to when a submission needs to be in by.

    56. ………Furthermore, Schedule 3, Part 2 deals with meetings of the executive committee and requires proper notice to be given. The purpose is to ensure all lot owners have an opportunity to make relevant submissions to the executive committee before any decision is made by the Owners Corporation.
    57 …… every lot owner was entitled to be notified of the impending decision making and an opportunity to make his or her position clear on the matter to be decided.
    Lawson & Clarke v Owners Corporation SP 61788 (Strata & Community Schemes) [2011] NSWCTTT 270 (27 June 2011)

    At the end of the day cases like Yau seem to indicate that the SC has capacity to make decisions even if no agenda is sent. So the absence of where and when hardly matters if that is how the Courts want to roll.

    1. If a strata meeting notice is a summons then to not say where or when seems to make it less than a summons.

      just clearing up a typo.

  2. There is a time and place for the time and place.

    The notice needs to state the date, time of commencement and place of the meeting: Wishart v Foster (1961) 4 FLR 72.
    (Perhaps their rules say so; I have no read the case)

    The time and place of the meeting should be reasonably convenient for those entitled to attend.
    Cannon v Trask (1875) LR 20 Eq 669.

    Everyone loves a good company law analogy:
    Directors have a duty to convene meetings, particularly annual general meetings, at a time and a place where all members of the company present in the state will be able to attend: Smith v Sadler (1997) 25 ACSR 672.

    Maybe not everyone
    Barrett J
    44 In these special circumstances (and where the owners corporation occupies, in relation to the relevant property, the purely representative position for which the strata titles legislation makes provision), analogies drawn from company law cases are limited and must be approached with care. Rather than attempting to fit the circumstances within (or to scrutinise them against) company law precedents, the court should deal with their own special reality.
    Carre v Owners Corporation – SP 53020 [2003] NSWSC 397

  3. Hi Amanda

    Thought it was worthwhile providing some insights into how StrataVote deals with this subject:

    We rely on the Electronic Transactions Act 2000 (NSW), which allows for legislative requirements for certain documents to be ‘in writing’ and ‘signed’ to be dealt with electronically. See specifically sections 8 and 9.

    For writing, the information needs to be readily accessible so it can be referred to at a later date. Our system records the votes and the are then stored electronically, meeting this requirement.

    For signing, the requirement is that you need a method to identify the person and indicate the person’s intention regarding the ballot.
    NSW committee ballots can be done live via StrataVote Anywhere. Our system ensures the relevant person is identified by issuing a unique meeting link and having the manager running the meeting verifying attendance. The system also requires the voter to actively select votes, which requires them to record their intentions. The voter can also change or withdraw their selections before the closing of the ballot at the meeting. Our system effectively records an electronic signature, recording details of who voted (including when/where) and what they chose.

    Hope that helps.

    Cheers

    Matt

    1. “ … the manager running the meeting…”
      Planting the seed that a manager runs a meeting?
      “The legislation has always envisaged that generally, strata schemes would be managed by ordinary lot owners for their own benefit….”
      J Bordon: Nulama Village P/L v Owners Strata Plan 61788 (Strata & Community Schemes) [2006] NSWCTTT 550 (25 September 2006)

      The Chair runs meetings and the Chair does not have to be a manager.
      The industry, for money, not the owners, have created the vibe that managers are in charge. Although the point of the post was to explain Stratavote (a nice product) that point, for me, is lost behind the seed planting. Such an innocuous trigger. I will spare the reader a mini thesis on how the industry has, in the minds of the general public, displaced the principal from their position.

      Let’s consider the devil, because the devil is in the detail.

      (3) For a vote to be valid, a ballot paper must be signed by the voter and completed by the voter’s writing on it—
      (a) the names of the candidates (without repeating a name) for whom the voter desires to vote, the number of names written being no more than the number determined by the owners corporation as the number of members of the strata committee, and
      (b) the capacity in which the voter is exercising a right to vote, whether—
      (i) as owner, first mortgagee or covenant chargee of a lot (identifying the lot), or
      (ii) as a company nominee, or
      (iii) by proxy, and
      (c) if the vote is being cast by proxy—the name and capacity of the person who gave the proxy.

      Signing is just one part. As long as it does it all then no problem.
      I have been to NCAT and been part of an EC (as it was then) ordered to re-hold the EC election because the Member had issue with not every aspect of a ballot being right. Every aspect had to be complied with, according to this Member. It was ‘all in’ as far as the Member was concerned and the Member always has the nuts and bolts.

  4. It is indeed hard to contain noise, especially if it brings income to residents on illicit business in a residential zone. Two adjacent, strata units back of my property have converted their residence into a ‘work shop’, operating mainly from 11pm up to early morning at 6am with a machine that keeps on churning, pumping and spinning at an hourly interval for about 10 to 15 minutes.

    It is extremely annoying as the sound dribbles in my ears and spins into my head into a state of explosion. There are tradies involved who seems to be adept in all kind of electrical and mechanical ‘rorts’. Their installation interferes into our electrical appliances, making my heater roar even though it is switches off as well as my portable fan turning its blades into a wild spin, whenever the neighbours operate their suspected ‘machine’.

    Heard all over my property, there is no alternative space to sleep in peacefully avoiding that rattling, roaring noise. The Council sent staff to monitor the noise, but was not successful as they do not stay long enough to get the noise heard. The neighbours noise operation being done in sporadic, intermittent way, the Council staff does not wait. The owners area also streetwise and could perhaps have contacts with the council that tip them off when the inspection would be done. The other owner even has a dog trained to sniff police when they come, so the operation stops at the sight of the cops.

    The police has been called in more than 20 times without luck. The noise stops when they arrive, they leave. They have no warrant to get into the properties to check whatever machine or motor is being operated. The police relied on the Council to do its job. The Council relies on the police to call them up when former has more access to get into the premises of the offenders because of the building code where such non-compliance is happening.

    I have advised the respective strata of those 2 units including our own agent to communicate with the other, but nothing is happening. I have also written personally the culprits about their activity, still they carry on with their operation unmindful of the neighbours.

    They do not respect any rule. They are just consumed with whatever ‘business’ they are doing. They defy the authorities. How can you win with these callous, cunning residents seems to be beyond legal resolution that entails a lot of litigation. Perhaps, divine intervention would ensue, one day.

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