September 14, 2020 at 8:23 pm #303417StrataOwnerMember
Are there any specific parts of the SSMA 2015 which require (oblige) the Strata Committee (SC) to:
1. Inform the owners that there was a resignation of a SC member
2. Fill the vacancy after the resignation of a SC member for the rest of the tenure before the next AGM
3. Inform the owners that the Owners Corporation was invited to Fair Trading mediation upon receipt of such invitation?
Also, can the SC silently decline the Fair Trading mediation without calling a SC meeting and having a minuted motion for such decision?
StrataOwnerSeptember 15, 2020 at 11:14 am #308726ts1904Expert
- No, but that would be the best practise.
- No, section 35(2) of the Act states that the Committee may fill the vacancy, not must fill it.
- Normally the Strata Committee would convene a meeting to decide on whether to attend. The Owners Corporation would then be informed via the notice or minutes of the meeting (depending on the size of the strata scheme).
The committee should not have made that decision unless at a meeting. Even if they made it by an informal email discussion they should ratify it at a meeting (perhaps by written or online vote).September 15, 2020 at 7:23 pm #312911StrataOwnerMember
Thank you very much TS.
Would you think this behaviour may be qualified as misconduct under s238 by the Tribunal?September 18, 2020 at 2:13 pm #333036Strata CommitteeMember
our ‘lay’ opinion is that we think for NCAT to make a s238 order, s260 may also have to be proved.
Can it be proved that the SC is not acting in ‘good faith’?September 18, 2020 at 7:15 pm #334903StrataOwnerMember
Hi Strata Committee,
Thank you – very interesting perspective. Both the manager and the SC do keep repeating “in good faith” in almost every communication.
Is it possible that under any circumstances the Tribunal may interpret failure to inform the owners of resignation of a SC member, vacancy in SC and attempted and rejected mediation as actions “in good faith”?September 23, 2020 at 9:08 pm #375415Amanda FarmerExpert
I am not aware of any published decisions recording the Tribunal making a s 238 order, so it’s hard to say what it would take to convince the Tribunal.
In my view, you’d need a lot more that these compliance issues, which will be seen as ‘procedural’ or ‘technical’ in nature and not – as StrataCommittee points out – a failure to act in good faith.
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