NSW: Q&A Owners Corporation Meetings – Correspondence, Times and Frequency

Question: Is it ok to defer an AGM because of Covid-19? Many residents do not have internet so electronic voting will be difficult. If so, how long can it be deferred for?

Answer: If the Owners Corporation holds an annual general meeting once in every financial year, it will comply with the strata legislation.

Many Owners Corporations are deferring their annual general meetings and implementing electronic, telephonic etc alternatives to physical meetings. So long as the Owners Corporation holds an annual general meeting once in every financial year, it will comply with the strata legislation.

This post appears in Strata News #334.

Question: Our building is 38 lots. Is our strata committee required to post an agenda for ordinary general committee meetings to the notice board of the owners corporation?

Answer: While the notice is routinely sent out by post to owners, tenants must be given notice either by post OR by displaying it on the notice board.

The relevant section for non-large strata schemes is Schedule 2 – while the notice is routinely sent out by post to owners, tenants must be given notice either by post OR by displaying it on the notice board:

7 Notice of general meetings other than first AGM

1. This clause applies to general meetings other than the first annual general meeting of an owners corporation.
2. Written notice of a meeting must, at least 7 days before the meeting, be given to each owner.
3. Notice of a meeting must also be given, at least 7 days before the meeting, to each first mortgagee or covenant chargee on the strata roll if an item on the agenda is one in which the mortgagee or covenant chargee may cast a priority vote. A priority vote may be cast in the circumstances set out in clause 24.
4. Nothing in this Part requires an owner to give notice of a meeting to himself or herself.

11 Notice to be given to tenants

1. A copy of the agenda for a meeting must, at least 7 days before the meeting is held:
   1. be given to each tenant, who has been notified to the owners corporation in accordance with this Act as a tenant of the lot, or
   2. prominently displayed on any notice board required to be maintained by or under the by-laws on some part of the common property.
2. Copies of other documents relating to a meeting may be given to each tenant of a lot if the owners corporation so decides.

This post appears in Strata News #278.

Question: Can I appoint an agent to receive all correspondence including owners corporation meetings information and levy notices? My strata manager insists this must go to the registered owner.

I will have my son living and managing my unit. I, therefore, want all correspondence including owners corporation meetings information and levy notices to go directly to him.

My strata manager states that this is not allowed and all correspondence must go to the registered owner.

Surely this cannot be correct. I understand that I am ultimately responsible, however, I wish to exercise my right to appoint an agent for this correspondence.

Answer: You are correct. You are entitled to appoint an agent to receive notices.

You are correct. Under Section 155 below (emphasis added), you are entitled to appoint an agent to receive notices.

155 Owner may appoint agent if not able to deal with notices

1. An owner of a lot in a strata scheme may appoint an agent to receive notices and other documents under this Act if the owner is unable to deal with those notices because of intellectual impairment or physical impairment, illiteracy or an inability to read or write English sufficiently well or absence from the lot.

This post appears in Strata News #226.

Question: Are there rules concerning the actual time of day when an AGM is held?

What are the rules around owners corporation meetings, specifically concerning the actual time of day when an AGM is held? Last year our AGM commenced at 3 pm with the consequence that only 7 out of 24 lot owners were able to attend.

Answer: The timing should not “intentionally” be selected to prevent certain owners from attending.

Though the strata legislation is silent on the point, some general rules do apply.

While the timing of the AGM is at the discretion of your strata manager or strata committee, that discretion must be exercised in good faith and in the best interests of the owners corporation. The timing should be reasonably convenient for the members of the owners corporation. The timing should not “intentionally” be selected to prevent certain owners from attending.

This post appears in Strata News #210.

Question: What are the requirements for regular Owners Corporation meetings?

have recently bought and moved into a villa in a complex of 4 lots. I am used to living in strata units but am horrified that there are no Owners Corporation meetings throughout the year and only one very brief AGM (5 minutes according to the report I read).

Is this legal? I have contacted the Strata Manager and asked for a meeting, but have had no reply.

Answer: If you feel there have not been enough owners corporation meetings to discuss matters pertaining to the building you may, with lot owners, requisition a general meeting.

An Owners Corporation are required to meet annually. This meeting is referred to as the Annual General Meeting (AGM).

At each AGM the Owners Corporation must consider and decide on the statutory standard motions.

In addition to the compulsory Annual General Meeting, an Owners Corporation may also hold Executive Committee meetings and Extraordinary General meetings throughout the year. Both of these are optional Owners Corporation meetings.

It is very common for an Owners Corporation to hold multiple meetings in order to consider repairs and maintenance and make decisions regarding the building in general. This is due to the fact that no decision of the Owners Corporation is deemed a decision unless made at a properly convened meeting.

If you feel that there have not been enough Owners Corporation meetings to discuss matters pertaining to the building, you may get together with other owners to requisition a General Meeting. Persons entitled to vote in respect of lots, the total unit entitlement of which is at least one–quarter of the aggregate unit entitlement, can requisition the convening of a general meeting with the proposed motions that are submitted pursuant to:

Section 19 Other general meetings (Old Schedule 2, Clause 31):

1. The secretary or a strata committee of an owners corporation may convene a general meeting (that is not an annual general meeting) of the owners corporation at any time.
2. The secretary of the owners corporation, or another officer if the secretary is absent, must convene a general meeting (that is not an annual general meeting) of the owners corporation as soon as practicable, and not later than 14 days after, receiving a qualified request.
3. A meeting may be convened on a qualified request even if the first annual general meeting has not been held.
4. A request is a “qualified request” for the purposes of this section if it is made by one or more owners of a lot or lots in the strata scheme having a total unit entitlement of at least one-quarter of the aggregate unit entitlements.

Schedule 1, Clause 4 Inclusion of matters on agenda

1. Any owner, or any person entitled to vote at a general meeting of an owners corporation, may require a motion to be included in the agenda of the next general meeting of the owners corporation.
2. The requirement is to be made by written notice given to the secretary of the owners corporation that:
   1. sets out the required motion, and
   2. states the name of the person making the requirement, and
   3. includes an explanation of the motion of not more than 300 words in length.
3. The secretary must give effect to the requirement.
4. However, if the requirement is made after notice has been given of the meeting, the Secretary must include the motion in the agenda for the next subsequent meeting.
5. An owner or a person may make a requirement even if the owner or person cannot vote because the owner is an unfinancial owner.

Question: Our secretary does not issue a notice and agenda details of the meetings to owners on our notice board or by any other means. By breaching committee secretary duties, are the owners corporation meetings and decisions still valid?

I am a committee member in our strata scheme and I have concerns that the decisions/resolutions we make are invalid or null in void, because the secretary does not issue a notice and agenda details of the meeting to owners on our notice board or by any other means.

There are no minutes posted after the owners corporation meetings either. It has been the same with the 3 meetings we have had thus far.

My question is, by breaching committee secretary duties, are the owners corporation meetings valid and decisions made null in void and be legally challenged?

Answer: The failure to post minutes and give proper notice as required under the SSMA is a serious breach of the secretary’s duties.

It is difficult to respond to this question without knowing which decisions the executive committee actually made but haven’t recorded or distributed minutes in relation to. We will assume that you do not have a strata managing agent.

The failure to post minutes and give proper notice as required under the SSMA is a serious breach of the committee secretary duties:

STRATA SCHEMES MANAGEMENT ACT 1996 – SECT 22

22 What are the functions of the secretary of an owners corporation?

The functions of a secretary of an owners corporation include the following:

• to prepare and distribute minutes of meetings of the owners corporation and submit a motion for confirmation of the minutes of any meeting of the owners corporation at the next such meeting,
• to give on behalf of the owners corporation and of the executive committee the notices required to be given under this Act,
• to maintain the strata roll,
• to enable the inspection of documents on behalf of the owners corporation in accordance with section 108,
• to answer communications addressed to the owners corporation,
• to convene meetings of the executive committee and (apart from its first annual general meeting) of the owners corporation,

1. to attend to matters of an administrative or secretarial nature in connection with the exercise, by the owners corporation or the executive committee, of its functions.

While the decision of the executive committee could be challenged in the absence of notices and minutes, the Owners Corporation could ratify decisions of the executive committee (so long as the decision making power does not lie exclusively with the executive committee).

While the SSMA has provisions to nullify incorrectly held general meetings as per the below, no corresponding provisions appear for executive committee meetings – however, a disgruntled owner could seek orders under an adjudicator’s general powers under Section 138 of the SSMA.

STRATA SCHEMES MANAGEMENT ACT 1996 – SECT 154

154 Order where voting rights denied or due notice of item of business not given

1. was improperly denied a vote on the motion for the resolution, or
2. was not given due notice of the item of business in relation to which the resolution was passed.

• An application for an order under this section may not be made after 28 days after the date of the meeting at which the resolution was passed.
• If an order under this section is made in relation to a resolution making a by-law or amending or repealing another by-law and the order has been recorded as provided by section 209, the by-laws have force and effect on and from the date the order is so recorded to the same extent as they would have had if the resolution had not been passed.
• Subsection (3) is subject to the by-laws having been or being amended or repealed in accordance with this Act and to any relevant order made by a superior court.

1. An application for an order under this section may be made only by a person entitled to vote on the motion for the resolution concerned.

This post appears in Strata News #117.

Question: Our strata manager told me she doesn’t have to distribute the General Meeting minutes until two weeks before the next General Meeting.

Our strata manager told me she doesn’t have to distribute the General Meeting minutes until two weeks before the next General Meeting. I’m sure the Act states 14 days from the date of the General Meeting. She now refuses to enter into a discussion about the requirements for owners corporation meetings and will no longer reply to my emails.

Answer: Your strata manager’s position regarding the distribution of general meeting minutes is totally incorrect.

Your strata manager’s position regarding the distribution of minutes is totally incorrect if your scheme is not a large scheme.

STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 6 states:

Meaning of “large strata scheme”

1. In this Act, “large strata scheme” means a strata scheme comprising more than 100 lots or another number of lots prescribed by the regulations for the purposes of this section.
2. When calculating the number of lots in a strata scheme for the purposes of this section, utility lots and lots used for the purposes of parking are not to be included in the calculation.
3. The regulations may contain provisions of a savings or transitional nature consequent on a change in the kinds of schemes that are large strata schemes.

Schedule 1 Section 22 of the Strata Schemes Management Act, 2015 (NSW) states:

22 Minutes

1. Records to be kept The owners corporation must keep full and accurate minutes of its meetings that include minutes of all motions passed at its meetings.
2. Distribution of minutes and records of motions Within 14 days after a meeting, the owners corporation must provide copies of the minutes of the meeting in the following manner:
   1. by giving each member of the strata committee a copy,
   2. by giving each owner a copy, if the strata scheme is not a large strata scheme,
   3. by giving an owner a copy, if the strata scheme is a large strata scheme and the owner requests a copy within the period of 14 days.

Maximum penalty: 5 penalty units.

You may wish to bring point about owners corporation meetings to the attention of your strata manager.

This post appears in Strata News #171.

Question: We feel our AGM minutes do not factually represent the events of the Owners Corporation meetings. How can we fix this?

We live in a Strata Complex in NSW.

When the Agenda for our AGM was sent out recently to the Owners, it stated that the decision making powers of the Executive Committee be limited.

In the Minutes of the AGM it reads that there are no restrictions placed on the decision making powers of the Executive Committee.

No one at the meeting remembers discussing changing the Executive Committee’s power to No Restrictions, even though I feel this is something we would remember.

I asked our Strata Manager about the minutes, who at the AGM put forward the change from limited to no restrictions, and who second it? The Strata Manager will not communicate this information.

Is it correct procedure to change this without a vote from the Owners Corporation and is an owner entitled to the information on who put forward the change?

Answer: You will have an opportunity at the next general meeting to correct the position.

Schedule 1 Section 8 of the SSMA 2016 states:

8 Matters that must be included in the notice of general meetings

(1) The following matters must be included in, or accompany, the notice given of all general meetings:

(a) a form of motion to confirm the minutes of the last general meeting of any kind,

At the next general meeting, there will be a form of a motion to confirm the minutes you state erroneously recorded the limitations on the strata committee. This will be your opportunity to correct the position.

This post appears in Strata News #137.

Question: I was always of the opinion that discussion and confirmation of the previous minutes was just a procedural thing and did not require a motion to be put.

I have read your template for the Agenda for AGM of Strata in NSW and Your template does not allow for any discussion on minutes of the previous meeting.

We had our AGM the other day and the chairperson (representative from Strata Agent, not our normal strata manager) would not allow any discussion on business arising from previous minutes as they said there should have been a motion presented to the meeting.

I believe this was done to shut the meeting down as they were aware there was unrest as to how the Management Agreement was signed last year (for 3 years), the seal was affixed to undated contract, signed by persons not nominated by meeting, witnessed when the contract had already been signed.

I was always of the opinion that discussion and confirmation of the previous minutes was just a procedural thing and did not require a motion to be put. They would not allow a motion from the floor either as they said it had to be on the agenda.

Answer: You are correct. The old and new legislation require a motion of confirmation of the previous minutes.

You are correct. The old and new legislation require a motion of confirmation of the previous minutes. It is difficult to imagine that confirmation could occur without some form of discussion.

Should you wish to challenge the appointment of the subject strata manager, you should seek specialist legal advice.

This post appears in Strata News #124.

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Please note that this article is provided for information purposes only and is not a substitute for professional legal advice.