WA: Q&A Notice Periods, Motions and Electronic Notices

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WA lot owners are wondering how would an item get onto the AGM agenda without the required notice period. Shane White, Strata Title Consult, provides the below response.

Table of Contents:

• QUESTION: Can the strata company send out notices electronically?
• QUESTION: Does the change to the legislation from May 2020 still require a hard copy of the Notice to be provided with 14 days notice?
• QUESTION: Is a proposal required to be seconded prior to being put to the vote at an AGM or an EGM?
• QUESTION: If a Motion at AGM is passed by majority owners, is this resolution binding on all owners and is the Strata Company obligated to follow such resolution?
• QUESTION: How would an item get onto the AGM agenda without the required notice period?

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Question: Can the strata company send out notices electronically?

Answer: The ability of the strata company to send out notices electronically is in addition to the strata company sending out the notice by mail.

The ability of the strata company to send out notices electronically is in addition to the strata company sending out the notice by mail.

If an owner doesn’t have an email address then there is no other way to have the notice sent to them.

In both instances the meeting notice will still require the 14 days notice period to be followed.

Of course, sending by mail will require an additional postage period to be allowed for eg: 5 extra days to allow for the owner to receive the meeting notice and have 14 days to review the Agenda.

It is the responsibility of the owner to ensure that they have an up to date address for service of notices whether it is by mail or by email.

It is my view that a hard copy of the meeting notice should be sent to all owners.

Refer to section 129 of the STA.

Shane White
Strata Title Consult
E: [email protected]

This post appears in Strata News #440.

Question: Does the change to the legislation from May 2020 still require a hard copy of the Notice to be provided with 14 days notice?

Answer: The new changes allow for electronic sending of meeting notices provided the owner is responsible enough to keep their email address up to date.

Shane White
Strata Title Consult
E: [email protected]

Question: Is a proposal required to be seconded prior to being put to the vote at an AGM or an EGM?

Answer: There is no requirement in the Act that states any motion must be seconded before being put to the vote.

There is no requirement in the Act that states any motion must be seconded before being put to the vote.

Proper meeting procedure should allow for discussion for and against the item of special business and the motion being put before the vote is taken.

Shane White
Strata Title Consult
E: [email protected]

This post appears in Strata News #432.

Question: If a Motion at AGM is passed by majority owners, is this resolution binding on all owners and is the Strata Company obligated to follow such resolution?

At the AGM it was resolved that if our Strata Company makes an insurance claim due to damage caused by the occupant of the unit, the owner will pay the insurance excess. In previous years the excess was paid by some owners but now the Strata Company (under new strata management) says they can’t collect the excess from the owners because they don’t have a Cost Recovery By-Law and the resolution is not enforceable on owners.

If a Motion at AGM is proposed, then seconded, voted on, and passed by majority owners, is this resolution binding on all owners and is the Strata Company obligated to follow such resolution? Or, because it is not supported by a Cost Recovery By-Law, and such resolution only shows what transpired at the meeting, the follow up of the resolution is optional and such resolution can not be enforced? 

Answer: A Motion to be proposed for the recovery of the insurance excess or the ability of the Strata Company to enforce the owner to pay the excess must be passed at a General Meeting.

The Strata Management Company is the company contracted to do the administrative functions as “Strata Managers”. This is different to the “Strata Company” which is the legal entity that is representative of all the owners in the “Strata Scheme”.

There may have been an established practice that the individual owners paid the insurance excess but unless a by-law was registered on the strata plan to recover the excess from the individual then the strata company would need to pay.

It would appear that your Strata Manager is correct in that they cannot recover the “insurance excess” as there is no by-law for that purpose registered on the Strata Plan.

A Motion to be proposed for the recovery of the insurance excess or the ability of the Strata Company to enforce the owner to pay the excess must be passed at a General Meeting. Such a by-law would need to be passed by Resolution Without Dissent (RWD) as it would need to be included in the Schedule 1 Governance by-laws.

If your Strata Company hasn’t already done so, any Additions, Amendments or Repealing of any by-laws would trigger the need to do a “First Consolidation of By-Laws as required by the changes to the Act on the 1st May 2020.

Any previous motions would have had to comply with the Act, passed by the required resolution (RWD) and authorise the registration of a new by-law on the strata plan.

Shane White
Strata Title Consult
E: [email protected]

This post appears in Strata News #429.

Question: How would an item get onto the AGM agenda without the required notice period?

The act implies that any matter that is not specified in the act to be required on the agenda for an AGM is classified as special business, which requires 14 days notice to proprietors. However the act also states that ordinary resolutions may be passed at an AGM which does not require a notice period for that item. 

How would an item get onto the AGM agenda without the notice period to be voted upon in such a manner? As all proprietors would not have sufficient notice to exercise their right to vote in an informed manner. 

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Answer: All items of special business must be included on the meeting notice whether it is an AGM or EGM to which each owner receives 14 days notice. Items not listed on the agenda could not be voted on unless the requirements of the Act have been met.

The section of the Strata Titles Act 1985 (STA) you refer to is 129 (2)(c) where the meeting notice must include “for special business, notice of the general nature of that business”.

Section 129(4) states that “The owner of a lot may give written notice to a member of the council of the strata company of an item of business that the owner requires to be included on the agenda for a general meeting of the strata company and that item must be included on the agenda for the meeting and notice must be given of that item as an item of special business under subsection (2)(c). “

So, the Act is quite implicit in that it states the Notice “MUST” include those items specified in section 129(2).

The Act also specifies the different resolutions that can be passed in section 123 of the STA.

These 4 types of resolutions are available:

• Unanimous
• Resolution Without Dissent
• Special
• Ordinary

For any of them to be passed or voted on a General Meeting notice must have been sent. (see 123(7) Ordinary Resolutions.

A 14 day notice period is required to be given in that 4 -5 days is for hard copies is to be allowed for postage so the owner receives the notice with 14 days to look at it.

It must be noted there is a difference between an item of special business listed for discussion – IE: further decisions are required to be made, quotes may need to be obtained before a motion can be passed at a later general meeting.

Items of special business may have since progressed or are presented as a motion as they are backed up with quotes and the need to carry out some form of expenditure to be approved by Ordinary (majority) resolution.

In summary:

• All items of special business must be included on the meeting notice whether it is an AGM or EGM to which each owner receives 14 days notice.
• Items not listed on the agenda could not be voted on unless the requirements of the Act have been met.

Shane White
Strata Title Consult
E: [email protected]

This post appears in Strata News #420.

Have a question about how an item would get onto the AGM agenda without the required notice period or something to add to the article? Leave a comment below.

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Read next:

• WA: Insurance Documentation for the AGM After Proclamation
• WA: Q&A Access to Council of Owners / Strata Information

Disclaimer: this article should not be relied on as legal advice.

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