Reena and I discuss:
 
  • intentionally creating a vacancy on the committee at the AGM. Is this legal?
  • when minor work becomes a major issue
  • the creative resolution of Tribunal proceedings for a dysfunctional owners corporation,
 
and more.
 

Links mentioned:

12 Responses

  1. Hi Amanda and Reena;

    Thanks again for the podcast.

    Re the matter of the Vacant position on the Committee: I am wondering whether there is away that you can search the podcasts to references for this. As I listened this morning I felt that this topic had come up before and I felt that on the previous occasion the discussion mentioned that a vacant position could be created for situations similar to the one presented by Reena in the podcast. If my memory serves me correctly, it was associated with Reg 9 (3) which states “After the chairperson declares that nominations have closed, the owners corporation is to decide, in accordance with the Act, the number of members of the strata committee.”

    Very keen to listen to the previous podcast again – just not able to locate it

    1. Hi singaustralia, with the recent site upgrade we seem to have lost the ‘search’ function which was previously on the podcasts library. We’re having our developer add that back now. But I have to say, I can’t recall Reena and I having discussed how a vacant position could be created? See the comment below from Chris Bone. That idea is a good one…it’s not mine though!

  2. Notwithstanding the OC can’t create a vacancy there is still the following;
    38 Acts and proceedings of strata committee valid despite vacancies or defects
    (1) This section applies if, when any act or proceeding of a strata committee was done, taken or commenced there was—
    (a) a vacancy in the office of an officer of the owners corporation or any other member of the strata committee, or
    (b) any defect in the appointment, or any disqualification, of any such officer or member.
    (2) Any act or proceeding of a strata committee done in good faith is as valid as if the vacancy, defect or disqualification did not exist and the strata committee were fully and properly constituted.

    So whatever the SC do would still be valid despite the ‘defect’ of having the extra SC member who was not compliantly elected?

    Animals: If the OC can refuse an animal (if the animal causes a nuisance) isn’t that putting the cart before the horse?
    It would only be after a pet was allowed that its ‘nuisance value’ would come to light.

    Flooring: perhaps turn to Krims (Krimbogiannis) and consider the ‘fabric of the building’.

    1. Hi billenben, on the animal issue, you’d probably be interested in this very recent advice I have received from a barrister on the point:

      “…Another aspect of section 137B(2) is that it is framed in the present tense. The keeping of an animal is reasonable unless the animal unreasonably interferes with another occupant’s amenity. The sub-section does not provide for an anticipated interference.

      Thus, a by-law arguably cannot provide a blanket prohibition on the keeping of a man-eating lion. The owners corporation has to wait until the man-eating lion unreasonably interferes with another occupant’s amenity and only then prohibit the keeping of it.

      That reading of sub-section 137B(2) is contradicted by sub-section 137B(5)(b) which contemplates that a by-law may require a lot owner to obtain the owners corporation’s consent before the keeping of an animal in a lot begins. Thus, sub-section (5) does provide for an anticipated interference.

      In my opinion, a court or tribunal will reconcile these two contradictory provisions by accepting the impracticality of a narrow, present tense only, reading of subsection 137B(2) and the less ambiguous intention of subsection 137B(5)(b). That is, sub- section 137B(2) will most likely be construed to have the following effect: “It is taken to be reasonable to keep an animal on a lot unless the keeping of the animal unreasonably interferes with or is likely to unreasonably interfere with another occupant’s use and enjoyment of the occupant’s lot or the common property.” “

      1. Indeed my point, the present tense.
        That interpretation works for hungry lions.
        I think we are going to need a Colosseum here, to go with our existing quarry and cemetery.

        (5) An owners corporation is taken to have given permission for the keeping of an animal on a lot
        if—
        (a) it made a decision about the keeping of the animal in contravention of subsection (1)(b), or
        (b) a decision of the owners corporation is required before the animal may be kept on the lot
        and the owners corporation failed to make a decision within a reasonable time.

        Not sure about the Baristas view on (5). I will think about it as (5) does have a different temporal vibe to it.
        many thanks

      2. Can’t wait to see the objective test of what is ‘likely to unreasonably interfere’.
        For a dog; something like the breed is a recognized fighting breed would be in the ball park but if the current Regs are giving us a framework for ‘unreasonable’ then that would not make the cut.
        Subjective anti pets dominated OC’s are going to create all sorts of fun for NCAT and lawyers with their ideas of what ‘likely to’ means for them.

        Do they have a permit for that lion?

  3. Amanda and Reena,

    A solution to the problem of the strata committee member who the owners suspect wants to be re-elected to the committee but fails to attend the AGM or provide a written nomination.

    We learned the day before an AGM that a valued member of our committee would be away and could not send a written nomination. We spoke to an owner who we knew would be present at the AGM but had no interest in being a committee member. We asked her if she would allow herself to be nominated at the meeting. She did, she was elected and shortly after provided the secretary with her written resignation. The vacancy was then filled by the committee. The same approach could be taken if a person who had indicated he or she was seeking election and would be at the AGM failed to appear. An owner might be found at the meeting who would be prepared to stand and later resign.

    These podcasts are very helpful to people like me who don’t know too much about strata laws and principles and are no doubt just as helpful to to those who are involved in strata on a daily basis.

    1. Could also have a stooge elected and said stooge makes the absent, wanna be SC member, owner their substitute for the term of the SC.
      That would work as well except from the back story the substitute might not like the lack of full title and prefer the option Chris puts forward.

  4. Hi Amanda & Reena,
    Interesting discussion re Vacancy on initial Strata Committee “SC “…..I just cannot join the dots on the reasoning that a vacancy on the SC is NOT created when a Motion is passed to have an SC of say 5 persons and by further Motion only 4 persons are elected. These are separate stand alone Motions.

    Reg 9 (4)states ” those candidates are to be declared by the chairperson to be, and are taken to have been, elected as the strata committee,” It validates the appointment of the 4 persons but it surely does NOT change the outcome of the earlier motion to have an SC of 5.

    5-4 = a vacancy of 1, does it not ?

    Am I missing something ?
    many thanks

  5. Hi John, it’s important to refer to all the words in Reg 9(4):

    (4) If the number of candidates–
    (a) is the same as, OR FEWER THAN, the number of members of the strata committee decided on–those candidates are to be declared by the chairperson to be, and are taken to have been, elected as the strata committee, or
    (b) is greater than the number so decided on–a ballot is to be held.

    See in particular the words, “is the same as or fewer than…”

    This means that if you nominate less people than there are positions (say 4 people when 5 positions were determined), those 4 people ONLY become THE strata committee. They don’t become “the strata committee but with a vacancy, in case an unnamed/unnominated/unelected person wants to take the position later…”

    This also makes sense from a policy perspective. The owners present and voting at the AGM are entitled to elect their own committee and know who those people are at the end of the meeting, not leave a space available for someone unknown to jump on the committee later (that opportunity only arises if a member of the existing committee resigns or otherwise vacates their position before the next AGM).

    Hope that helps.

    Amanda.

  6. Hi Amanda,

    Many thanks for taking the time to revisit this.
    I understand the reasoning, although I remain troubled by it….

    From a policy perspective I believe that there is intent in having separate motions for setting the # on the SC and for electing members – setting numbers is to do with organisational structures, elections are to do with appointing to a role.

    Likewise I would see the intent of the Reg being to affirm that despite only 2 persons being elected, less than the required, say 4, the election still CREATES A VALIDLY APPOINTED SC.

    I struggle with the notion of extending the intent of the Reg to negating the existence of a vacancy.

    To take this to its logical conclusion an SC would be condemned to an effective 100% quorum for a year ( 50% of 4 = 2 persons) if owners resolved to have a Committee of 4 and only managed to elect 2 persons at the AGM. There would be no opportunity to increase SC membership up to 4, as my understanding is that the interpretation favoured by Reena and yourself effectively denies the existence of a “vacancy” resulting from the election process.

    Or perhaps…when it comes to the calculations for a quorum under Sch 2 cl 12(4) “The quorum for meetings of a strata committee is to be calculated on the basis of the number of members last determined by the owners corporation for the committee.” would it be your view then that in the above example a quorum would be based on 2, not 4, despite a Motion having been passed that the number on the SC be determined at 4 ??

    I defer to lawyers of course on this, but I just don’t get it !
    Many thanks
    John

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