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

The agenda contained four motions submitted by one owner regarding painting. The project would deplete our capital works fund and require a special levy.

If no notice of intention had been sent out prior, doesn’t this preclude other owners from submitting motions? Is this a legitimate way to call an EGM?

The three other owners and the strata manager believe the EGM was validly called and would proceed.

If it is an invalid EGM, how do I stop it from proceeding? As the proposal is a large expense for non-urgent works, does the strata manager have any responsibility if they allow it to proceed?

Answer: There is no requirement to call for motions before sending out a meeting notice for an AGM or EGM.

Provided correct notice had been provided (7 clear days’ notice and, if any meeting notices had to be posted, an additional 7 business days’ notice) then the required meeting notice has been provided.

Allison Benson Kerin Benson Lawyers E: allison@kerinbensonlawyers.com.au P: 02 4032 7990

This post appears in Strata News #685.

Question: As an owner, what communication approach is most effective for prompting the strata committee to respond to requests, instructions, or questions?

Answer: You need to make sure that your message to the committee is clear and it needs to be something they can make a decision on.

The clearer, the better. You need to make sure that your message to the committee is clear, and it needs to be something they can make a decision on.

If you provide a lot of words, and include nothing that enables the committee to make a decision, you’re just throwing out statements without any questions. That’s a mistake.

To begin with, you need to compel the committee to take an action they can take, and committees make decisions. You’ve got to give them a firm concept, we call it a motion, that they can decide upon. That way, they must take action.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the December 2023 edition of The NSW Strata Magazine.

Question: We are a two lot Strata. The other lot owner is overseas for 12 months. How do I write an explanation instead of holding an AGM until they return next year?

Answer: The other lot owner should appoint a proxy to ensure the owners corporation meets its legislative obligations.

We do not recommend delaying the AGM due to the requirement set out below in the Strata Schemes Management Act, 2015 (NSW)(emphasis added):

18 AGM must be held

An owners corporation must hold an annual general meeting once in each financial year of the corporation.

The other lot owner should be appointing a proxy to ensure the owners corporation meets its legislative obligations.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #660.

Question: As owners are not allowed to speak at committee meetings unless given permission, are there any exceptions to this? Can the committee resolve at the meeting to permit a person to speak?

The Act says that owners are not allowed to speak at strata committee meetings unless permitted by a resolution of the strata committee.

Are there exceptions for asking questions/clarifications about the treasure’s report or expenditure by the strata committee etc?

Also, is there a definition of what constitutes a resolution in this regard? For instance, does it have to be a written resolution passed before the meeting? How long before the meeting? And can the resolution limit the topics and depth of the enquiry?

Or can the committee resolve at the meeting to permit a person to speak?

Answer: Owners are not allowed to speak at committee meetings unless permitted. The strata legislation does not mention any exceptions to this.

You are correct. Owners are only allowed to speak at committee meetings if permitted. No exceptions to this are listed in the strata legislation.

Is there a definition of what constitutes a resolution in this regard? Not specifically. However, once passed, a resolution is a motion. The legislation states:

“A motion put to a meeting is to be decided according to a majority of the number of the votes cast for and against the motion by the members present (other than any tenant member) or in the manner set out in subclause (2)”.

Nothing in the legislation mandates that the written resolution has to have been passed before the meeting.

Theoretically, and while it is not expressly permitted in the legislation, the resolution might be able to “conditionally” permit owners to address the strata committee based on your parameters “limit the topics and depth of the enquiry” which could also include restrictions on the duration of time that an owner is permitted to speak.

In our view, because an agenda must detail the motions to be resolved, for the committee to resolve at the meeting to permit a person to speak, there would either need to be a motion on the agenda or a generic authorisation resolved (at a meeting or as a written resolution) before the subject meeting. Often strata managers have a template included in standard agendas for strata committee meetings to consider whether owner observers may address the meeting in case non-member owner(s) attend.

Further, as an owner, you have rights to block the strata committee from considering a matter if you have support from other owners and together you have unit entailments that exceed 1/3 of the aggregate unit entitlement) (Sch 2, Section 9(3)) and if you give notice to the secretary of the owners corporation that you oppose the decision before the decision is made. An alternative approach is to requisition motions at the owners corporation/general meeting level seeking the detail/clarification you require, which may serve your purposes and would supersede a decision of the strata committee.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #659.

Question: Our committee’s agenda mentions an ‘action list’. The list is only available to committee members and items are discussed by the committee after the meeting closed. Are the SC allowed to do this?

We have a committee that produces its agenda for each SC meeting and then issues minutes for the meeting.

The agenda also included an item called ‘action list’ and I requested a copy of this list as it was on the agenda. My request as an owner was refused and the chairman said the action list is only for the committee members.

Meeting agendas held by the SC after the request now do not show the item ‘action list’ so the committee run the meeting then officially close the meeting, then discusses the action list.

I believe this is inappropriate and hides records about many topics of the building that should be on record and part of the meeting with appropriate record keeping so all owners can see what is going on with their building.

Are the SC allowed to do this?

Answer: Perhaps a suitable compromise with the Strata Committee to maintain the peace would be to ask that a similar report be provided at the AGM to be tabled and discussed so that the owners are kept informed about the building priorities.

This is an interesting question. I’m not sure why the Strata Committee wouldn’t report the action list to the other owners. They may be concerned about providing incomplete information to the owners before projects are completed?

An owner could do a search of the books and records under section 182 of the Strata Schemes Management Act 2022 and ask that the action list be made available for inspection when making the appointment. This should be checked with the Strata Manager, assuming you have one.

Perhaps a suitable compromise with the Strata Committee to maintain the peace would be to ask that a similar report be provided at the AGM to be tabled and discussed so that the owners are kept informed about the building priorities.

Rod Smith The Strata Collective E: rsmith@thestratacollective.com.au P: 02 9879 3547

This post appears in Strata News #627.

Question: Does the meeting have to follow the order of motions in the agenda? Can a motion early in the agenda be discussed at the end?

Answer: Yes. I note that the chair has conduct of the meeting and can move to deal with a motion earlier in the meeting or later in the meeting.

Andrew Terrell Bright & Duggan E: Andrew.Terrell@bright-duggan.com.au P: 02 9902 7100

This post appears in Strata News #619.

Question: A lot owner has made a qualified request for a general meeting. His motion does not include any item to be voted on. Can he pick the time and place of the meeting?

A lot owner has made a qualified request for a general meeting. He has presented a document of 1680 words which he is calling the motion, but so far the motion does not contain a resolution or statement to be voted on.

The strata committee has asked for the motion to be amended to include a resolution and provided a link to the example on the LookUpStrata site.

The lot owner has sent an email to all other owners stating the time and date of the meeting (in 9 days’ time) but no agenda has been completed yet or sent to lot owners due to the ‘motion’ not containing a resolution to vote on. Does the ‘…14 days after receipt of a qualified request’ still apply?

Is a lot owner (who is not a committee member) able to set a time and date for a general meeting?

Answer: The lot owner who issued the qualified request does not get to choose the time and place for the meeting.

The obligation on the secretary is to include the motion as written, assuming it also contains an explanatory note. If the motion is defective (for example there is nothing to vote on), then the Chairperson can rule it out of order at the relevant meeting, under Schedule 1 clause 19, as it would be unenforceable. It is not the strata committee’s job to fix up defective motions.

For the qualified request, the necessary percentage of owners need to sign it (25% of the unit entitlement).

The lot owner who issued the qualified request does not get to choose the time and place for the meeting. This is done by the Secretary, whose role it is to convene the meeting under section 19(2) (and generally).

James Moir Madison Marcus E: Strata@madisonmarcus.com.au P: 02 8022 1222

This post appears in the December 2022 edition of The NSW Strata Magazine.

Question: Can a deferred Motion be amended at an Association Committee meeting?

Answer: Logically, a motion at an adjourned meeting could be amended provided the motion is substantially the same motion.

There’s nothing in the Act regarding deferred motions for committee meetings, or the amendment of motions at committee meetings.

Below are the relevant sections of the Community Lands Management Act 2021: See Schedule 2.

Logically, a motion at an adjourned meeting could be amended provided the motion is substantially the same motion (e.g. decision on a cleaner not being amended to be a decision on a gardener).

14 Adjournments

A meeting may be adjourned for any reason if a motion is passed at the meeting for the adjournment.

The time and place at which a meeting adjourned under this Part is to be resumed must be fixed by the person who was presiding at the meeting.

The secretary of the association must give to the members of the association, at least 1 day before the resumed meeting, a notice specifying the time and place of the meeting.

Notice is to be given in writing (including by email or other electronic means).

7 Decisions at meetings

Voting at meetings A motion put to a meeting is to be decided according to a majority of the number of the votes cast for and against the motion by the members present (other than any tenant member, in the case of a neighbourhood committee) or in the manner set out in subclause (3).

If there is only 1 member of the association committee, the decision of the committee is the decision of that member.

Voting in writing A motion proposed to be put to a meeting is taken to have been validly passed even if the meeting was not held if—
1. notice was given of the meeting in accordance with this Schedule, and
2. a copy of the motion was given to each member of the committee, and
3. the motion was approved in writing by a majority of the members of the committee (other than any tenant member, in the case of a neighbourhood committee).
Decisions to have no effect if opposed by more than specified owners A decision of an association committee has no force or effect if, before the decision is made, notice is given to the secretary of the association by 1 or more owners of relevant lots, the sum of whose unit entitlements exceeds one-third of the total unit entitlements, that the making of the decision is opposed by those owners.

Voting rights cannot be exercised if contributions not paid A member of the association committee is not entitled to vote on any motion put or proposed to be put to the committee if the member was, or was nominated as a member by a member who was, an unfinancial member of the scheme at the date notice of the meeting was given and the amounts owed by the unfinancial member were not paid before the meeting.

Tenant member not entitled to vote A tenant member of a neighbourhood committee is not entitled to vote on any motion put or proposed to be put to the committee.

8 Manner of voting

A vote at a meeting by a person entitled to vote must be cast in person unless the association committee, by resolution, determines that a vote may be cast by some other specified means.

Note—

A person may be present at a meeting even if not actually at the meeting (see the Dictionary definition of person present).

The regulations may make provision for or with respect to the following—
1. the means of voting (other than in person) that may be adopted by an association committee,
2. without limiting paragraph (a), procedures for voting by those means,
3. prohibiting the use of specified means of voting.

Andrew Terrell Bright & Duggan E: Andrew.Terrell@bright-duggan.com.au P: 02 9902 7100

This post appears in the December 2022 edition of The NSW Strata Magazine.

Question: I am the Secretary of our Strata Committee. Is there a Strata Committee agenda I can refer to?

I am the Secretary of our Strata Committee. When it comes to preparing for Strata Committee meetings, I struggle with the format of the agenda (not the content). I have searched online and come across many samples.

Is there a Strata Committee agenda I can refer to?

Answer: See our template agenda below.

A great strata committee agenda is critical for managing a smooth, productive and well run Strata Committee meeting. One of the main signs that a Strata Committee is not working effectively together is when matters get rolled over from meeting to meeting without any action. In almost all instances, matters should be discussed and voted on, postponed to a determined date (ie in one years’ time) or voted down as no longer being relevant (ie a matter carried forward from the last meeting that has now resolved itself).

Our template agenda is as follows:

Motion 1 – Minutes

A motion to consider the minutes of the last meeting.

Motion 2 – Matters Arising

A motion listings matters arising from previous meetings, with a detail on the action to be taken. EG – Balcony railings – THAT the quotations for balcony railings be tabled and approval be given to accept one of the following quotes:

ABC at a cost of $X; or

XYZ at a cost of $X.

Motion 3 – Financial Statements

A motion to table and discuss the interim financial statements for the last period and a sub motion to table and discuss the arrears report.

Motion 4 – Building Managers Report

A motion to table the Building Managers report and list any items for action. The final items should be a motion THAT any other repairs and maintenance items be discussed and actioned.

Motion 5 – Other Matters

A motion to list any other matters for consideration.

Motion 6 – Applications

A motion to approve or ratify any pets or renovation applications that the Strata Committee can vote upon.

Motion 7 – Residents Feedback or questions

A motion for owners to ask any questions of the Strata manager, Building Manager or the Strata Committee.

Motion 8 – Next Meeting

Date, time and place of the next Strata Committee Meeting.

If you would like a draft template, I would be happy for LookUpStrata clients to email me to assist. See below for my contact details.

Rod Smith The Strata Collective E: rsmith@thestratacollective.com.au P: 02 9879 3547

This post appears in the November 2022 edition of The NSW Strata Magazine.

Question: When an agenda regarding approval for renovations is sent to non Strata Committee members, should it include attachments?

When a Strata Committee agenda is sent to non Strata Committee members, should it include the attachments mentioned in the agenda? If not, why not?

A Strata Committee meeting agenda has been sent regarding approval for the installation of a new kitchen. This is the motion:

MOTION 2: LOT 4 KITCHEN RENOVATION APPROVAL: THAT the strata committee approve the minor works application for lot 4 as per the attached application and documents.

Should the agenda have included the application and documents?

Answer: There is no requirement to distribute attachments to non-strata committee members.

There is a requirement to distribute agenda and minutes for strata committee meetings (or place on the noticeboard, depending on whether the scheme is large or not).

There is no requirement to distribute attachments to non-strata committee members, however these should be available on the schemes records and on request.

Andrew Terrell Bright & Duggan E: Andrew.Terrell@bright-duggan.com.au P: 02 9902 7100

This post appears in the November 2022 edition of The NSW Strata Magazine.

Question: At our recent AGM, there was no vote taken on any of the motions. Is it a requirement that all motions at an AGM have a mover and seconder and then are put to the vote?

Answer: Once all motions are set out in an agenda/notice of meeting, they simply get voted on. They pass or fail.

In practice, once all motions are set out in an agenda/notice of meeting, they simply get voted on. They pass or fail. However, if there are minor amendments to a motion which do not have a substantive impact on the intention of the motion, then that amendment is proposed and seconded (as you suggest), then that amendment is put to the vote and the motion amended accordingly. The Chairperson may make determinations as to technical matters such a quorums and procedural matters including ruling motions out-of-order.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #607.

Question: At our last AGM I proposed a motion that meetings be held after 6pm. Our Strata Manager denied the motion from being on the agenda. Does the Strata Manager have authority to dismiss a motion?

I proposed a Motion for our last AGM within the correct guidelines and timing, that being, that future Annual General Meetings, Extraordinary General Meetings and General Meetings be held at 6 pm instead of 10 am on a weekday, so that proprietors who cannot make it during normal business hours could attend.

The Strata Manager informed the Secretary that it was their office policy not to have meetings out of business hours, as a result, my Motion was denied from being on the Agenda. I believe this is a serious breach of the Strata Titles Regulations for NSW.

However, my question isn’t about the actual time of the meeting, but I am concerned that the Strata Manager took it upon herself to dismiss the Motion from the Agenda altogether. If the meeting voted against it, so be it, but it was denied by the Strata Manager to be voted on at all.

Answer: Your strata manager, presumably as delegated Secretary, has no legal authority to exclude your motion.

Your strata manager, presumably as delegated Secretary, has no legal authority to exclude your motion (provided you comply with the provisions of Schedule 1, Clause 4 of the Strata Schemes Management Act, 2015 (NSW) (“SSMA”) with regard to the manner in which motions may be required to be included in an agenda).

On the contrary, the strata managing agent, as delegated Secretary, must give effect to the requirements and include your motion.

The only person with authority to rule a motion “out of order” once the motion is before a meeting is the Chairperson and then only if the motion is, among other things, unlawful or non-compliant with the requirements of the SSMA.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #590.

Question: At an AGM, can you amend a motion in the meeting and then the motion be voted on and passed

At a Community Association AGM (for a community association with precincts), can you amend a motion in the meeting and then the motion be voted on and passed?

The motion was for levies, and it was amended to increase the levies by approx $100k during the meeting and then voted on.

In previous meetings, the strata managing agent has advised that a motion can not be changed in a meeting. It must be voted on as written or lost and a new motion raised at another meeting. I feel we have received very conflicting and confusing advice.

Answer: Amendments to a motion cannot be a direct negative or materially change the motion.

Persons present at a meeting can move a motion to amend a motion.

In doing so, they propose precisely how they wish to amend the original motion.

A vote is then taken on whether the amendment to the motion is made, followed by another vote on the amended version of the motion.

In other words, first, the persons present and entitled to vote will vote on whether the motion should be amended to begin with (i.e. they are simply voting on whether to amend it).

They then separately vote on whether to carry the amended version of the motion (i.e. they are now voting on the actual outcome).

However, amendments to a motion cannot be a direct negative or materially change the motion. A motion to consider one thing cannot be amended to consider something completely different. It must be similar.

For example, a motion to make a by-law about pets cannot be amended to be a motion to make a by-law about short-term letting.

In the case of voting on raising levies, it could be argued that the owners who were not present were not given sufficient notice of the proposed amount. The validity of the decision could be contested.

For example, a motion to raise a special levy of $10,000 should not be amended to be $100,000.

The reason being, owners were not given proper notice of the possibility of this decision. They may have decided not to attend a meeting or give a proxy on the basis of there being a “low” amount being raised.

Any motions to raise levies need to be carefully considered and the possibilities need to be made clear to those who are given notice of the meeting so they can assess whether they wish to participate and vote.

Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213

This post appears in Strata News #585.

Question: At a committee meeting, I proposed a motion concerning a topic under discussion for the committee to adopt. The topic had been included in the meeting agenda. The strata manager ruled the proposed motion ‘out of order’. Is this correct?

A committee meeting was called by our strata manager with a written agenda containing a few fully written-out motions.

At the meeting, I proposed a motion concerning a topic under discussion for the committee to adopt. The topic had been included in the meeting agenda. It was not an issue that required approval at a general meeting.

Our strata manager was chairing the meeting. She ruled my proposed motion ‘out of order’ because the actual wording had not been included in the published agenda for the meeting.

I have been on strata committees for over 30 years. My understanding is that motions for a general meeting have to be written out clearly in the agenda, but at committee meetings, matters can be raised under a heading of ‘other business’ or under category headings such as: ‘discuss reports of leaking roof over lot 4’. In this scenario, an issue can be raised, a discussion held and a motion drawn up and voted on at the meeting.

Under the strata manager’s ruling, you couldn’t even raise an issue and propose a motion to be included in the agenda for the next committee meeting, unless it had been fully written out in the agenda.

Answer: A notice of strata committee meeting must include a “detailed” agenda pursuant to the requirements of the strata legislation.

Unfortunately, your strata manager is correct.

A notice of strata committee meeting must include a “detailed” agenda pursuant to the requirements of the strata legislation. In your scenario, passing a motion that was not included in the agenda would deny proper notice being given to all owners/committee members etc., and, in turn, deny owners the right to oppose the proposed decision by the strata committee or raise queries prior to the strata committee passing any resolution.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #581.

Question: At an EGM, one motion was to add 8 new by-laws. Should each bylaw have been considered in a separate motion? I voted to disapprove the motion because I agreed with some, but not others.

We recently had an EGM via pre-meeting electronic voting. One of the motions was to add 8 new by-laws. Should there have been 8 separate motions so each new by-law could be considered individually, or can all 8 be considered as 1 motion. I voted to disapprove the motion, as I agreed with some of them, but disagreed with others.

Answer: It may be relevant to have various decisions packaged into one motion. Sometimes two decisions need to be made at once.

There are no hard and fast rules on how this motion should have been drafted. Ultimately it is up to whoever submitted it and the outcome they are seeking.

The obvious downfall is the inability to make separate decisions on the merits of each by-law as they have been packaged together into one decision. Had they been separated, each one could have been considered on its merits.

In some cases, it may be relevant to have packaged various decisions into one motion. Sometimes two decisions do need to be made at once.

For example, these by-laws may have been interrelated somehow and may not make sense if one is registered without the other. Another example might be to authorise works and also enter into the contract to do so.

Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213

This post appears in Strata News #577.

Question: At our recent AGM, a number of motions were being considered. As each motion was read, the OC gave their recommendation. Should the committee have this influence?

I have a question regarding the protocol at an AGM.

Recently we had a number of motions to be considered by the Owners Corporation.

As each motion and the explanation was read to the Owners the Chairperson finished with the words “The Committee supports this motion” or “the Committee does not support this motion”.

The motions supported by the Committee were passed and the motions not supported by the Committee failed. In addition to this, each Committee member held a proxy for Owners not able to attend.

Is it correct that the Chairperson and Committee have this influence?

Answer: It is not unusual for the Strata Committee to put forward a recommendation.

It is difficult to provide any specific guidance as I do not know the motions being considered. It is not unusual, in my experience, for the Strata Committee to put forward a recommendation. They are usually involved with the day to day running of the strata scheme and so often they know more about what the matter relates to and have formed an opinion.

Section 26 of the Strata Schemes Management Act 2015 details the requirements around the appointment of a proxy and Committee members are often provided with proxies by owners unable to attend as they are visible elected members of the Owners Corporation.

Robert Fothergill Strata Life E: Robert@thestratalife.com.au P: 02 9456 9917

This post appears in Strata News #569.

Question: Can significant matters that require special resolutions be raised verbally under a general heading at the AGM?

At our recent AGM, two matters were discussed that were not specified on the agenda.

Both items were raised verbally. The first was under ‘Maintenance’. The second matter, requiring a special resolution, was introduced in our Zoom meeting by a new owner under ‘Matters Arising.’

Can significant matters that require special resolutions can be raised verbally under a general heading at an AGM?

Answer: No motion, whether ordinary or special, can be resolved unless it appears on the notice/agenda of the general meeting.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #562.

Question: Do the strata committee get a copy of the AGM agenda first, or do all owners get the agenda at the same time? If the committee get it first, does it put others at a disadvantage?

Answer: There is no formal requirement that the AGM agenda must be given to the strata committee first.

The legislation states that written notice of a meeting must be given to each owner (and each first mortgagee or covenant chargee). There is no formal requirement that the AGM agenda must be given to the strata committee first, though, in practice, strata managers often do circulate a draft AGM agenda to the committee first, to ensure all matters that the strata committee wish to determine at an owners corporation level are included for consideration at the AGM.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #521.

Question: If a motion was defeated twice in the past, can the same motion be included on the Agenda of the upcoming AGM?

I am an owner in a strata scheme the chairperson wants to install security cameras in our building. The motion was defeated twice in the past. The same motion was listed in the Agenda of the AGM on the 22 of October 2021.

From my understanding if a motion was defeated twice therefore it is considered dead. Am I correct?

Answer: Owners are at liberty to requisition any motions provided they comply with the legislation and are legal.

We are not aware of such a presumption in NSW strata legislation. Further, owners are at liberty to requisition any motions (provided they comply with the legislation and are legal) and the protection afforded to owners is that any such motion would need to be passed by special resolution.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #521.

Question: Is it possible for Owner Corporation in NSW to pass a motion that is in direct contravention of NSW SSMA?

Is it possible for Owner Corporation in NSW to pass a motion that is in direct contravention of NSW SSMA? The motion passed was to charge a lot owner the Owners Corporation’s legal fees if the lot owner failed to prove his/her case in NSW Tribunal. I thought the Tribunal orders costs depend on the SSMA (NSW).

Shouldn’t this motion have been struck out by our Strata Manager, who was the convener and chairperson of the AGM, as it was in direct contradiction to SSMA?

Answer: Technically, an owners corporation can pass a motion that is in direct contravention (not that it should) of the Strata Schemes Management Act.

Technically, an owners corporation can pass a motion that is in direct contravention (not that it should) of the Strata Schemes Management Act.

Schedule 1, clause 19 of the Strata Schemes Management Act 2015 (NSW) (‘the Act’) states:

Chairperson may rule certain motions out of order

The chairperson at a meeting may rule a motion out of order if—

the chairperson considers that the motion, if carried, would conflict with this Act or the by-laws of the strata scheme or would otherwise be unlawful or unenforceable, or

any requirement of this Act to include the form of the motion in the notice of the meeting has not been complied with.

Similarly, for strata committee meetings, Schedule 2, clause 15 of the Act applies.

The keyword here is “may”. A chairperson is not necessarily required to rule the motion out of order. It is a choice for them to make based on their opinion and understanding of the circumstances and law.

Of course, if they are sure that the decision would conflict with the Act or by-laws, they should rule the motion out of order.

If the chairperson fails to rule the motion out of order, one can then seek orders from the NSW Civil & Administrative Tribunal, under section 24 of the Act, to invalidate the resolution.

Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213

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

Question: Can a committee submit a motion?

Can a committee submit a motion? – April 2021 issue. The notice of our last AGM included about 10 motions that the secretary (our managing agent) had submitted. We, the owners of 5 lots, had had no prior advice. As our agent is not entitled to vote at a meeting, is what the secretary did allowed?

Answer: The Act is generally silent about how motions get on the agenda of a general meeting

Please Note: This response has been updated in May 2021 due to 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.

The Strata Schemes Management Act 2015 (SSMA) is generally silent about how motions get on the agenda of a general meeting except in two cases: a motion may be submitted by an owner (clause 4(1) of Schedule 1) and the statutory/compulsory motions (clauses 6 and 8(1) of Schedule 1).

There may be many instances where the strata committee or the strata manager is best placed to put motions on an agenda. For example, the SSMA requires an owners corporation to raise a special levy when it is met with an unexpected expense that it does not have the funds for (section 81(4)) and the persons likely to be in a position to assess that is the case and call a general meeting to raise the special levy will be strata committee members and the strata manager, rather than individual owners.

The strata managing agent is usually delegated the functions of both the owners corporation and the secretary (as contemplated by sections 52(1) and 54(1) of the SSMA) and that would allow the agent to place motions on the agenda.

Section 19(1) of the SSMA authorises the strata committee to call a general meeting other than an annual general meeting and that would mean the committee would decide the reasons for calling the meeting and the motions that 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 and that too would mean the secretary would decide the motions that go on the agenda. The strata committee controls who the secretary is because it appoints and can remove the secretary (sections 41(1) and 45(1)(c) of the SSMA) of the SSMA) so it would normally be expected that the secretary would place on the agenda those motions that the committee wants.

In addition to the above, the notice and agenda for a general meeting are the owners corporation’s documents and when the strata committee acts, its decisions are those of the owners corporation (section 36(2) of the SSMA) so it should be able to decide the content of the documents.

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. In this case, the strata committee placed a motion on a general meeting agenda to approve retaining lawyers to appeal a first instance NCAT decision, and the general meeting approved the motion. There was no explanatory note naming strata committee members by name as sponsors of the motion. The Appeal Panel ruled to the following effect:

It was not apparent that if the strata committee required a motion to be included in the agenda of a general meeting but there was no explanatory note specifically naming the strata committee members who sponsored it, that that motion would be void.

A motion required by the strata committee but which fails to state the names of the persons comprising the strata committee does not result in the motion being incapable of approval by a general meeting.

Even if there was a failure to name the sponsors of a motion because it is required by clause 4(1) of Schedule 1 of the SSMA, if the motion is passed at the general meeting then the resolution approving the motion is likely to be valid.

Abuse of the power to place motions on an agenda does not mean the power does not exist. Rather, the remedy for any such abuse is in the hands of the owners at a general meeting: they are free to vote down any such motion (this seems to be implicit in the above Appeal Panel ruling) and to change the strata committee and the strata manager who sponsored the motion. Applying principles from the common law relating to companies, bodies corporate and meeting procedure should mean that this is an appropriate way to deal with the issue.

Carlo Fini Lawyer (NSW)

This post appears in Strata News #472 & 475 (updated).

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: info@premiumstrata.com.au 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 Lawyer (NSW)

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

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.

The requirement is to be made by written notice given to the secretary of the owners corporation that:

sets out the required motion, and

states the name of the person making the requirement, and

includes an explanation of the motion of not more than 300 words in length.

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: info@premiumstrata.com.au 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

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: info@premiumstrata.com.au 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:

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 the strata committee of the owners corporation 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 this Act,

to answer communications addressed to the owners corporation,

to convene meetings of the strata committee and (apart from its first annual general meeting) of the owners corporation,

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,

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: info@premiumstrata.com.au 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:

Disregard a motion for any justifiable reason ie it’s out of order, and not convene a General Meeting?

Determine if the motion is either trivial or unworthy of calling a formal meeting of the owners corporation?

Determine that the motion would not be in the interest of the owners corporation?

Choose to have a virtual meeting with electronic voting in preference to a physical meeting of lot owners?

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).

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?

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?

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?

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

No. Schedule 1 Clause 4 (3) requires the Secretary to give effect to the requirement.

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.

You must give effect to the requirement. The owners corporation, or rather the Chairperson would determine such matters at the general meeting.

The strata committee or owners corporation must resolve to do so first and comply with the other requirements of the legislation and regulation.

It is not really the strata committee’s role to make such demands, but rather the Chairperson’s at the meeting.

There is no requirement to do so, so we consider any discussions should take place at the meeting.

No. You must comply with the timeframe specified.

Again, the legislative timeframe must be observed.

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: info@premiumstrata.com.au 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:

it is inappropriate to maintain, renew, replace or repair air-conditioning units installed within the Lots at the scheme; and

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: info@premiumstrata.com.au 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: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #162.

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