NSW: Q&A Who sets the agenda, Explanatory notes [PLUS a Sample Motion]

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These Q&As have been received from our NSW audience about general meetings, motions on an agenda and also include an example of a motion.

Table of Contents:

• QUESTION: Whenever I submit a motion to be placed on the AGM agenda, it gets rewritten and changed. Why does this happen and is this action legal?
• QUESTION: Can the committee “put” or “move” a Motion at a general meeting? Can the committee submit a Motion for a general meeting?
• QUESTION: I requested a Motion be included on the Agenda of a General Meeting. The Strata Manager failed to include the Motion. Are they in breach of the legislation?
• QUESTION: Is a member of an Executive Committee eligible to vote on a motion they put forward? I understand the Committee members have a responsibility to make decisions on behalf of all lot owners, not for personal gain.
• QUESTION: Does the Strata Manager circulate an EGM notice and voting papers without consulting with the Committee, or is the SC meant to vote on what is included in the EGM agenda?
• QUESTION: What are the protocol and procedures for dealing with requests from a Lot owner for an EGM and a motion on the agenda?
• QUESTION: I have to write a motion for our upcoming general meeting. I was wondering if I could get a sample motion as I have never written a motion before.
• QUESTION: Do you need to include explanatory notes for every motion on an agenda?

Question: Whenever I submit a motion to be placed on the AGM agenda, it gets rewritten and changed. Why does this happen and is this action legal?

Every time I ask for a motion to be placed on the agenda for the AGM, either the Strata Manager or the Strata Committee completely rewrite my motion.

There is illegal parking occurring in our apartment block. I wrote a detailed description of various ways this can be solved and how the Owners Corporation could go about remedying the problem. All of the helpful information has been deleted on the agenda for our up and coming AGM.

Is this kind of action legal?

Answer: It may be that your motion was not drafted in such a way that it could be voted on in a for or against manner.

If you have submitted a “required” motion under Schedule 2, Clause 4 of the Strata Schemes Management Act 2015 (NSW), your motion (and explanation and background information) should be included verbatim. However, it may be that your motion was not drafted in such a way that it could be voted on in a for or against manner and the strata manager re-drafted it for that reason.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #466.

Question: Can the committee “put” or “move” a Motion at a general meeting? Can the committee submit a Motion for a general meeting?

Can the committee “put” or “move” a Motion at a general meeting? Or using other words, can the committee submit a Motion for a general meeting? I don’t believe it can.

As far as I can determine, apart from the required statutory motions on an agenda for general meetings presumably inserted by the secretary, Schedule 1 of the Act, Part 2, 4 (1) states that “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.” That is, only an owner (or the secretary inserting statutory motions) can submit, put or move motions to general meetings by placing them on the Agenda.

Answer: The strata committee can place motions on the agenda of an annual general meeting and any other general meeting.

The strata committee can place motions on the agenda of an annual general meeting and any other general meeting.

This is not spelt out in the Strata Schemes Management Act 2015 (SSMA) in express terms but on the other hand there is nothing in the SSMA that prohibits it. The SSMA in practice permits it.

Section 19(1) of the SSMA authorises the strata committee to call a general meeting other than an annual general meeting. That means in practice the committee gets to decide the reasons for calling the meeting and what motions will appear on the agenda for it.

Sections 19(1) and section 43(f) of the SSMA authorise the secretary to call both annual general meetings and other general meetings. That means the secretary decides the motions that go on the agenda. The secretary is appointed by and can be removed by the strata committee sections 41(1) and 45(1)(c) of the SSMA, and also section 47(1)(b)(i) of the Interpretation Act 1987. So in practice, the secretary will place on the agenda motions that the strata committee decides should be on the agenda and if the secretary does not, the strata committee can replace the secretary with a person who will.

The statutory motions set out in clauses 6 and 8(1) of Schedule 1 of the SSMA must be included in the agenda of an annual general meeting; the secretary and the strata committee cannot omit them. However, there is nothing in the SSMA that says these are the only motions that can be included in the agenda.

In addition, a motion submitted by an owner in accordance with clause 4(1) of Schedule 1 of the SSMA must be included on the agenda of the general meeting next after it is made.

During the course of a general meeting, procedural motions can be moved by a person at the meeting, and amendments to motions on the agenda can be moved by a person at the meeting. There is no need for the strata committee to move those motions.

If owners are not happy with motions proposed by their strata committee, then they can vote against them at a general meeting and exercise the ultimate weapons of removing strata committee members or electing a new strata committee at the next annual general meeting.

Carlo Fini
Lewis & Charles Lawyers
E: [email protected]
P: 02 8095 6263

This post appears in the April 2021 edition of The NSW Strata Magazine.

Question: I requested a Motion be included on the Agenda of a General Meeting. The Strata Manager failed to include the Motion. Are they in breach of the legislation?

I requested a Motion be included on the Agenda of a General Meeting. The Strata Manager failed to include the Motion. Also, I had submitted a second motion which was included, however the Strata Manager failed to include a significant paragraph pertaining to the Motion.

I have emailed the Strata Manager’s principal but there is no interest in addressing the issues.

I would like to complain to the NSW Fair Trading and/or the applicable Authority responsible for the compliance of Strata Managers. Any suggestions for the best way to pursue these issues.

Answer: If you are certain that the strata manager didn’t exclude your motion due to some technical deficiency or because the agenda had already been issued, the strata manager is in breach of the strata legislation

If you are certain that the strata manager didn’t exclude your motion due to some technical deficiency or because the agenda had already been issued, the strata manager is in breach of the strata legislation: see Schedule 1, Clause 4:

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.
4. The secretary must give effect to the requirement.

You may wish to draw this provision to the attention of the strata manager.

Alternatively, you may wish to report the manager to NSW Fair Trading or Strata Community Australia or seek mediation on the matter.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #418.

Question: Is a member of an Executive Committee eligible to vote on a motion they put forward? I understand the Committee members have a responsibility to make decisions on behalf of all lot owners, not for personal gain.

Answer: You are correct.

You are correct. SCHEDULE 2 – Meeting procedures of strata committees of the Strata Schemes Management Act, 2015 (NSW) states:

18 Disclosure of pecuniary interests

1. If:
   
   1. a member of a strata committee has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting, and
   2. the interest appears to raise a conflict with the proper performance of the member’s duties in relation to the consideration of the matter, the member must, as soon as possible after the relevant facts have come to the member’s knowledge, disclose the nature of the interest at a meeting of the strata committee. Maximum penalty: 10 penalty units.

Further,

37 Duty of members of strata committee

It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence.

260 Personal liability of officers of owners corporations and others provides protection from personal liability for members of strata committees who act in good faith.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #374.

Question: Does the Strata Manager circulate an EGM notice and voting papers without consulting with the Committee, or is the SC meant to vote on what is included in the EGM agenda?

I have a question about who determines what is included in an EGM agenda?

Can the Strata Manager simply circulate an EGM notice and voting papers without consulting with the entire Strata Committee, or is the SC meant to vote on what is included in the EGM agenda?

Answer: Instead of convening a meeting specifically for the requirement, you may place the motion on an agenda for the next general meeting

Both the delegated secretary (Strata Manager is usually delegated this function) and the elected secretary of the Owners Corporation have the same functions as set out below:

43 Functions of secretary of owners corporation

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

1. 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,
2. to give on behalf of the owners corporation and the strata committee of the owners corporation notices required to be given under this Act,
3. to maintain the strata roll,
4. to enable the inspection of documents on behalf of the owners corporation in accordance with this Act,
5. to answer communications addressed to the owners corporation,
6. to convene meetings of the strata committee and (apart from its first annual general meeting) of the owners corporation,
7. to attend to matters of an administrative or secretarial nature in connection with the exercise of functions by the owners corporation or the strata committee of the owners corporation,
8. any other functions conferred on the secretary under any other Act or law.

In practice, the strata manager and secretary/strata committee would work collaboratively to ensure that all requisite motions were included in an agenda. While it would not strictly be unlawful for the strata manager to unilaterally issue an agenda, such practice could fall foul of the principles of agency law ie the principal owners corporation directs what the agent does on its behalf (subject to the strata management agency agreement and any delegated functions).

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #366.

Question: What are the protocol and procedures for dealing with requests from a Lot owner for an EGM and a motion on the agenda?

Our question is about protocol and procedures for dealing with requests from a Lot owner for an EGM and a motion on the agenda?

What discussion does the Strata Committee have when responding to a General Meeting and request for a motion on the agenda. Can the Strata Committee:

1. Disregard a motion for any justifiable reason ie it’s out of order, and not convene a General Meeting?
2. Determine if the motion is either trivial or unworthy of calling a formal meeting of the owners corporation?
3. Determine that the motion would not be in the interest of the owners corporation?
4. Choose to have a virtual meeting with electronic voting in preference to a physical meeting of lot owners?
5. Demand a fair and reasonable explanation of any motion from its proposer when considered (by the Strata Committee) not to conform with best practice for maximum understanding, clarity and transparency? (i.e. explanatory notes considered as either ambiguous, biased or not provide the owners corporation with a fair and transparent explanation of the motion’s intent or motives).
6. To ensure balanced consideration, can the Strata Committee include within the General Meeting agenda a documented response to the motion to provide the owners corporation with an alternative explanation?
7. We note that (in Section 19 Other general meetings) response to any general meeting request should see that the meeting is scheduled within 14 days of the request. Are there any accepted protocols to extend this 14 day period following a GM request without any motion?
8. As a GM Agenda (including motions & explanatory notes), needs to be published (for the benefit of the owners corporation), in advance of the GM’s date, can the Strata Committee determine the official request date to be when a valid motion (and explanatory notes) are received? Alternatively, can the Strata Committee postpone a GM if motions are not forthcoming in good time to distribute to the owners corporation in advance to the meeting?
9. Can the Strata Committee defer any motion to the owners corporation’s until the next AGM if the AGM is scheduled to take place within a given period? If so, what deferral period is reasonable?

Answer: Instead of convening a meeting specifically for the requirement, you may place the motion on an agenda for the next general meeting

1. No. Schedule 1 Clause 4 (3) requires the Secretary to give effect to the requirement.
2. Again, you must give effect to the requirement, however, instead of convening a meeting specifically for the requirement, you may place the motion on an agenda for the next general meeting.
3. You must give effect to the requirement. The owners corporation, or rather the Chairperson would determine such matters at the general meeting.
4. The strata committee or owners corporation must resolve to do so first and comply with the other requirements of the legislation and regulation.
5. It is not really the strata committee’s role to make such demands, but rather the Chairperson’s at the meeting.
6. There is no requirement to do so, so we consider any discussions should take place at the meeting.
7. No. You must comply with the timeframe specified.
8. Again, the legislative timeframe must be observed.
9. The intention of a qualified request is to compel the secretary to convene a general meeting. So, no the Strata Committee may not defer.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #223.

Question: I have to write a motion for our upcoming general meeting. I was wondering if I could get a sample motion as I have never written a motion before.

I have to write a motion for our upcoming general meeting. I was wondering if I could get a sample motion as I have never written a motion before.

Answer:

THAT The Owners – Strata Plan No. XXXX *RESOLVE/*SPECIALLY RESOLVE to

*Delete which does not apply

A motion must be worded in such a way that a decision can be made. In other words, it must be worded so that when voting on it, you can vote yes or no to it.

For example:

MOTION

The Owners – Strata Plan No XXXX SPECIALLY RESOLVE pursuant to Section 106 (3) of the Strata Schemes Management Act, 2015 (NSW) to determine by special resolution that:

1. it is inappropriate to maintain, renew, replace or repair air-conditioning units installed within the Lots at the scheme; and
2. its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #221.

Question: Do you need to include explanatory notes for every motion on an agenda?

Answer: No. You do not need to include explanatory notes for each and every motion on an agenda.

The answer to this question is very simple – No. You do not need to include explanatory notes for each and every motion on an agenda. The only legal requirement to provide explanatory notes arises from Section 4 of Schedule 1 of the Strata Schemes Management Act, 2015 (NSW) (“SSMA”) in relation to meeting procedures of an owners corporation and the making of a “requirement” (formerly known as “requisitions” or “requisitioned motions”).

A requirement is a motion in writing given to the secretary of the owners corporation by an owner (whether or not financial) or other person entitled to vote at a general meeting of the owners corporation for consideration at the next general meeting of the owners corporation. The secretary has a positive duty to include a compliant requirement in the notice for the next general meeting of the owners corporation.

Section 4 (2) (c) of Schedule 1 states that a “requirement” must include “an explanation of the motion of not more than 300 words in length”. In this context, the absence of an explanatory note would invalidate the requirement. This is not, however, the case for any other motions.

There is no mandatory requirement to include explanatory notes for any other motions to be submitted or included for consideration by an owners corporation or strata committee.

Despite the fact that explanatory notes are not compulsory, they can be very useful for laypersons or those who do not have a thorough working knowledge of the current or previous strata legislation. Well-drafted explanatory notes elucidate or clarify and succinctly summarise the intent of a motion and should, therefore, be used wherever possible. We at Premium Strata consider the systematic use of explanatory notes to constitute best practice for maximum understanding, clarity and transparency.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #162.

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Read next:

• NSW: Q&A Owners Corporation Meetings – Times and Frequency
• NSW Fair Trading: Meetings of the owners corporation

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