January 19, 2021 at 9:56 am #397415AliMember
My Strata Committee turned a normal resolution into a special resolution, bypassing a normal resolution to alter our common property, then called a poll vote after the motion was resolved and tallied the numbers to satisfy the Strata Schemes Management Act. I made a point of order when the motion was read, this was ignored, did not appear in the minutes, which were accepted at the AGM a couple of weeks later.
STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 5
Resolutions of owners corporations
(1) In this Act, a resolution of an owners corporation is a “special resolution” if
(a) it is passed at a properly convened general meeting, and
(b) not more than 25% of the value of votes cast are against the resolution.
(2) For the purposes of determining a special resolution, the value of a vote in respect of a lot is equal to the unit entitlement of the lot. However, if the total unit entitlement of lots of the original owner is not less than half of the aggregate unit entitlement, the value of the vote in respect of those lots is taken to be reduced by two-thirds (ignoring any fraction).
(3) In this Act, a resolution of an owners corporation is a “unanimous resolution” if it is passed at a properly convened general meeting and no vote is cast against the resolution.
Would I be correct in assuming it would be a waste of time applying to NCAT to have the motion invalidated?
AliJanuary 21, 2021 at 5:30 pm #397525ts1904Expert
Schedule 1, clause 8(d) requires that the notice of meeting set out whether the motion requires a special resolution, so if the notice did not state that, it’s really too late to just change that at the meeting.
Having said that, if a poll was conducted and the outcome was that no less than 75% of the owners voted against, you are probably going to have a hard time at NCAT, because the Tribunal Member will want to be satisfied that the outcome might have been different if the law had been followed.
In my experience, Members tend to look for that. For example I had a case where the owners weren’t given sufficient legal notice for a meeting, but the Tribunal Member did not rule the meeting as invalid, because the applicant had attended the meeting in question (and therefore, it made no difference that they were given 6 days instead of 7 days, because they still got to vote).January 21, 2021 at 8:55 pm #397543Amanda FarmerExpert
+ 1 to ts1904 above.
The Tribunal certainly looks to whether anyone has been disadvantaged by the failure to follow procedure. If not, orders will not be made to change anything.
One point to clarify: did they really “turn a normal resolution into a special resolution” simply by calling a poll vote? It is legal for anyone entitled to vote on a motion to demand a poll at any time: before or after the motion is determined by show of hands. Poll votes are often called on ordinary resolutions. That does not turn them into special resolutions. It just means they are ordinary resolutions, determined by poll (UE) rather than show of hands.
Amanda.February 18, 2021 at 10:13 pm #398785AliMember
Dear ts1904 and Amanda,
Thank you for your guidance. The interesting thing about this motion is that the resolution was needed by Council to show owners consent to a Development Application which will greatly change the appearance of the building. Council requires the Strata Schemes Management Act to be followed, so the motion should have been a special resolution. The other interesting thing is the motion welds the Owners corporation to a set of Engineering Specifications by one Engineering Company. No other companies were asked to put forward plans and the DA quotes the cost to be $68,000 which is a vast underestimation of the cost, although it is over the threshhold requiring a second quote. The Strata Manager claims it is not a quote but merely an estimate. The estimate is based on a completely different DA The plans are misleading and the terms and conditions claim the plans do not comply with current design codes or the Building Code of Australia (BCA) and cannot be used by a third party. The other interesting thing is the By-Laws of the community association have been ignored as has the Strata Management Statement. There is a vast set of reasons as to why the motion should be made invalid, but it is not clear to me yet how to couch my argument in such a way to convince the Tribunal. I am hoping for a light bulb moment, which will clarify my argument into a coherent and undeniable victory. Any advice on the limited information I have provided would be greatly appreciated.
Kind RegardsFebruary 18, 2021 at 10:34 pm #398788AitikMember
Hi Amanda and Ali
I am afraid I have no insight on this issue but am interested in the point made by Ali about threshhold for multiple quotes. Can you explain how this works in general terms please?
AitiKFebruary 23, 2021 at 8:17 pm #398900Amanda FarmerExpert
Assuming Ali is in a building with more than 100 lots, section 102(1) of the Strata Schemes Management Act (read together with Regulation 25) requires at least two quotes for any expenditure over $30,000.
Can you take the ‘Council’ angle rather than the “OC” angle and lodge an objection to the DA on the basis the plans are wrong/cannot be relied on for the work and the consent of the CA/BMC has not been obtained (assuming that’s a missing piece too). In relation to the latter, even if the Council grants the consent, they should do so on the condition that CA/BMC consent is obtained by the OC before works commence, assuming that’s what the CMS/SMS requires. That gives you another platform from which to oppose the work down the track.
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