Question: Can a motion be added to an AGM agenda after the notice has already been issued to owners?
Our strata manager added a new motion to the AGM agenda after the notice had already been sent to owners, claiming the agenda had to be revised anyway to include updated financials. They argued this allowed the addition of the late motion. Is the secretary permitted to add late motions in this way?
Answer: Once the notice is sent, the agenda is fixed.
The Strata Schemes Management Act 2015 is very clear on this point.
Schedule 1, clause 4(4) states:
“However, if the requirement is made after notice has been given of the meeting, the secretary must include the motion in the agenda of the next subsequent meeting.”
The use of the word “must” makes this mandatory. Once the notice of meeting has been issued, no further motions can be added to that agenda. Any motions requested after that point are to be carried forward to the next meeting.
There is sometimes a misconception that the agenda can simply be withdrawn, revised, and re-issued with additional motions, provided the statutory notice period (generally at least 7 clear days for general meetings, or 14 for annual general meetings under current legislation) is maintained. While this may appear practical, it does not align with the strict wording of the Act. The secretary appears to have no discretion to insert additional motions once notice has been given — they are obliged to defer them.
If supplementary material, such as updated financial statements, becomes available after the notice is issued, this can be circulated as an addendum or tabled at the meeting. But the agenda itself cannot be expanded to include new motions.
In short: once the notice is sent, the agenda is fixed. Any new motions “must” be held over until the next meeting.
This post appears in Strata News #762.
Tim Sara
Strata Choice
E: tsara@stratachoice.com.au
P: 1300 322 213
Can a strata committee member in NSW require that a matter or draft motion be placed on a strata committee agenda for discussion.
Hi RD
This recent Q&A should assist:
Question: Can an owner who is not a committee member submit a motion to a committee meeting in NSW?
“The strata committee’s ability to place motions on the agenda of a general meeting was confirmed in an NCAT Appeal Panel ruling in The Owners Strata Plan no 63731 v The Bunker Pty Ltd [2021] NSWCATAP 119 handed down on 5 May 2021.”
Not exactly.
This is a single Member Appeal Panel decision and the decision does not make it clear the SC can place motions on the agenda. I would go as far as to say I doubt a real Court, not some Administrative Decision maker, would agree with the notion the SC can request motions.
It is very clear the SC can’t place motions on the agenda as they are not part of the “class of person” the Act states can place motions on an agenda. It is that simple and some Member looking for some equitable outcome can’t change that with hand waiving reasoning.
What Bunker seems to do is focus on capacity.
Even if somehow a motion ends up on an agenda when it was not put there in compliance with Sch 1 cl 4 then the resolution of that motion is likely to stand.
A lot of the Members reasons revolve around the lack of the name sponsoring the SC’s motion. This indicates there is in the back of the Member’s mind the need for some compliance with Sch 1 cl4.
If it is as suggested that the SC can just throw motions on an agenda then we do not see this line of reasoning.
Bottom line was the defects are not fatal to the outcome. It is not the case we have case law that says the SC can put motions on the agenda.
The big reason the SC can’t request motions is, imagine a SC made up of non owners. Theoretically possible. No one has entitlement to request a motion. If, as is suggested, the SC can request motions then we circumvent the Act.
If the decision is to be viewed as giving capacity to the SC to put motions on an agenda then it is a rubbish decision. I don’t think the decision says the SC can put motions on the agenda. It says that absent a sponsors name, non compliance with Sch 1 cl 4 (2b), the resolution of the motion is still good.
Our Body Corporate Manager provides different committee meeting agendas to the committee members and owners.
Owners are sent a notification of the meeting, with generic ”agenda items’ that never change or have any information: e.g. Business arising, Ratify VOC’s, General Business.
The committee’s version of the agenda includes dot points of the specific topics and motions that will be discussed.
Are owners allowed to know what’s on the agenda to be discussed at the meeting?
Why are there two versions of the agenda and is the one given to owners compliant?
Answer: …. “then that amendment is proposed and seconded (as you suggest)”.
There is actually no requirement to second it and i always find it funny people think there is.
Some case law which supports that position:
Horbury Bridge Coal, Iron and Waggon Co (1879) 11 Ch D 109 at 117-18
AND
National Australia Bank Limited v Market Holdings Pty Ltd (in liq) (2001) 161 FLR 1; 37 ACSR 629
You only need to second something if the ‘organisations’ rules say you need to.
Answer: A notice of strata committee meeting must include a “detailed” agenda pursuant to the requirements of the strata legislation.
Even if you do not send an agenda the decisions can still be valid, see The Owners Strata Plan No 57164 v Yau [2017] NSWCA 341
Absent any words or motion at all the SC can still make valid decsions. Whether the agenda is a worded motion or an indicative item seems to be at the centre of this question.
I can guarantee neither Macquarie St of NCAT really care less about Sch 2 cl 9(3) and the power of owners to in effect veto the SC on any matter. I have brought up the disenfranchising of owners by not giving any ‘detail’ or an agenda item and it has always resulted in zilch.
I have it, in writing, from former Commission for Fair Tradin Rob Stowe that the SC is confined to the agenda. But if you look at Yau that is not the case.
Ignoring the ‘must’ of ‘must include a detailed agenda’, because that is just rubbish after Yau, the question is “what constitutes detailed?”
A notice of meeting should be worded in such a way that ordinary minds can understand its meaning: Henderson v Bank of Australasia (1890) 45 Ch D 330.
A notice must give members fair warning of the matters to be dealt with: Ryan v Edna May junction Gold Mining Co (NL) (1916) 21 CLR 487; 22 ALR 222.
The test is to ask whether the information, if provided to an ordinary shareholder who scanned or read the document quickly, not as a lawyer, but as an ordinary person in commerce or as an ordinary investor, would fully and fairly inform and instruct the shareholder (owner) about the matter on which he or she would have to vote: Devereaux Holdings Pty Ltd v Pelsart Resources NL (No 2) (1985) 9 ACLR 956.
Without seeing the agenda or the wording of the motion it is hard to say if the agent got it right.
In my own SP there has not been an actual worded motion on an SC agenda for years. We are lucky to even see an item rate a mention. Typically the first owners know about a matter is a note in minutes; an NCAT do not care at all.
What is the correct procedure for a Lot Owner to take when they believe that a By-law is harsh, unconscionable or unreasonable?
My understanding is that the Lot Owner ought to be directing their grievance by filing an application to NCAT for the Tribunal to decide, and not raising it to the Strata Committee nor at a General Meeting.
Hi CJ
The following comment has been supplied by Leanne Habib, Premium Strata:
There is nothing to stop the owner from raising their concerns with the strata committee or at a general meeting, however, as you correctly state, the procedure is to make an application under Section 150 of the Strata Schemes Management Act 2015 (NSW)(the “Act”) for an Order declaring the by-law to be invalid (as NCAT has that jurisdiction) and compliance with the mediation requirements under the Act first.
Hello. Can you include an item of discussion on an agenda, rather than a motion, that doesn’t have a yes or no answer. For example if the council want to discus the landscaping of the common gardens. Then at the meeting a plan can be put in place and a formal vote can take place after the meeting once quotes have been obtained. Is this possible?
Hi David
The following response has been provided by Leanne Habib, Premium Strata:
Yes, you can have a motion “THAT The Owners Corporation discuss” a matter or item.
My Motions complied with the above. However I did not provide a 300 word explanation as it was well known that we had run an SGM resolving to remove the existing Committee. I followed up for confirmation several times. The Committee then decided to hold an AGM 3 days before the SGM voted in Committee was effective. They then put my motions up in a preamble and belittled their relevance and the SGMs relevance. Even though we had close to a quorum at SGM of 48.6% and 96% of owners voted to remove the Committee and voted in a new one.
I recently put forward a motion (with explanatory notes) to our Annual General Meeting seeking approval for owners to access various reports and documents on the […] owners portal. The motion was included on the AGM agenda which was sent to owners with a recommendation from the Committee that they vote NO to my motion. I have asked for but have yet to receive an explanation as to why the Committee made this recommendation which was subsequently defeated. Has the Committee acted correctly in making this recommendation to owners? Further, should it have been necessary for me to have to put a motion to the AGM to get […] access to reports and documents that owners are entitled to see (eg minutes of meetings, budgets, financials, insurance, pool compliance etc).
What action can a resident take if the body corporate committee fails to discuss, record or table correspondence from a lot owner at a committee meeting ?
Queensland. Accomodation Module
Hi Charles
The following response has been provided by Leanne Habib, Premium Strata:
You would need to “requisition” a motion that the strata committee “table, discuss and resolve to respond” to the issues raised in your correspondence.
Regarding the issue of a SC Member proposing a motion to the SC that they have a vested interest in which constitutes a breach of conflict of interest: The legislation mentions that there is a maximum penalty of 10 units which as I understand it to be $1,100.00. ($110.00 per penalty unit).
The article is quite interesting but it doesn’t mention how a Lot Owner can instigate this action when an SC member has breached art 15 of Schedule 2 of the said legislation? Could someone provide the steps required in implementing this course of action?
Also, shouldn’t the Strata Manager have mentioned to the SC and in particular to the member that they abstain from voting on their motion? What happens if the Strata Manager fails to do so? Are they in breach of their statutory obligations? If so, what would these breaches be under which legislation?
Hi CJ
Leanne Habib from Premium Strata has responded to your comment in this article: NSW: Q&A When are Pecuniary Interest Disclosures Required?
Can the honorarium Strata administer who is drafting the agenda for AGM enter their own motion to counter a motion having prior knowledge only from receiving the motion for input to agenda before the agenda is propagate d to body Corp owners.
Please note that the honorarium Strata administer is also an owner. Would this be taken as a unfair or disadvantage to the owner of the first motion.
Hi Arthur
We have received the following response from Leanne Habib, Premium Strata:
It would be interesting to see if the strata administrator “complied” with the requirements of the legislation in his capacity as “owner” (though there is no breach of legislation in the person preparing the agenda countering motions or the manner in which they are sequenced) and provided an “explanation” for the motion
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:
a. sets out the required motion, and
b. states the name of the person making the requirement, and
c. 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.