WA: Q&A Notices, Motions and Meeting Minutes

The following strata questions have been submitted by WA lot owners wondering about notices, motions and meeting matters such as minutes and the AGM.

Table of Contents:

• QUESTION: We have been notified of the upcoming AGM, however there is nothing on the agenda about any special business to be discussed. How can owners vote on anything if there is no notice of anything to be discussed?
• QUESTION: Should the Minutes Of Meetings consist of Minutes of resolutions or Minutes of narration? What is an acceptable practice?
• QUESTION: At an AGM, which resolution do we use to adopt the minutes of the previous AGM?
• QUESTION: Can a motion without notice be put to an AGM?
• QUESTION: Once a request has been submitted for an EGM, does a meeting date need to be set within 21 days?
• QUESTION: Are Strata Managers in WA required to make Zoom available for lot owners living out of town?
• QUESTION: Can lot owners attend Council of Owner meetings?
• QUESTION: Our strata council has not published any minutes from the last council meeting held over a year ago. Is this legal?
• 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?
• QUESTION: Where can I find the protocol procedure as a member of the COO to call an urgent meeting?
• QUESTION: Can you change the date of the AGM if you cannot attend and want to? How many owners have to request a date change?

Question: We have been notified of the upcoming AGM, however there is nothing on the agenda about any special business to be discussed. How can owners vote on anything if there is no notice of anything to be discussed?

Our body corporate and Strata Manager have sent a notice stating that the AGM is on December 21 however there is nothing on the agenda for any special business to be discussed nothing is included to be voted on apart from the election of office/ committee members and the financials.

We have not received any minutes of the committee meeting determined to hold the AGM or any business that will be discussed at the AGM.

How can owners vote on anything if there is no notice of anything to be discussed? If items are put to the meeting then would it be assumed as out of order and be null and void?

Answer: It might just be that the council hadn’t received any written submissions for special business and couldn’t think of any themselves.

I would like to respond firstly by quoting the Act. Section 127:

Annual general meetings of strata company

3. The following matters must be included as an item of business on the agenda for each annual general meeting of a strata company (including the first annual general meeting) —
   
   1. election of council members;
   2. consideration of accounts;
   3. the presentation of copies of certificates and schedules for the insurance required under this Act, current as at the date of the meeting.

4. All business transacted at an annual general meeting other than that referred to in subsection (3) is taken to be special business.

The Agenda contains the basic requirements as above at subsection (3) of the Act .

The requirements for the Notice are contained in (section 129) of the Act

129. Notice requirements for all general meetings

1. All owners of lots in a strata titles scheme and first mortgagees of those lots must be given at least 14 days’ notice of every general meeting of the strata company for the scheme.
2. The notice must include —
   
   1. the date, time and venue of the meeting; and
   2. for an annual general meeting, notice of each item of business referred to in section 127(3); and
   3. for special business, notice of the general nature of that business; and
   4. notice of each method of voting, whether by means of an electronic communication or otherwise, that is acceptable to the strata company.
3. Accidental omission to give notice of a general meeting to the owner or first mortgagee of a lot or non-receipt of the notice by the owner or first mortgagee of a lot does not invalidate any proceedings at the meeting.
4. 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).

Particular attention to subsections (2) (b)(c).

From here we can ascertain that “IF” there were any items of special business brought to the attention of a member of the council by written notice, then they must be included on the agenda for the meeting at subsection (4).

The question I ask is – Were there any items given by written notice to the Council of owners for inclusion into the agenda?

It might just be that the council hadn’t received any written submissions for special business and couldn’t think of any themselves.

What this means is that you as an owner have the opportunity to have items put on the agenda. The volunteer council members don’t know what you’re thinking so they aren’t able to put interesting topics in there just for a chat.

As a second point, only items on the agenda as special business can be discussed, voted on or actioned.

After the main items of business have been dealt with and all items of special business have been dealt with then, that would be the end of the meeting.

Further discussion on any other topics could only be done by leave of the Chair and may or may not end up being discussed.

Some strata companies have particular protocols as to when minutes of council meetings are distributed or if they are distributed only by request.

I don’t know what your protocols are so I can’t answer that question.

As an owner you are at liberty to make a written request to make an appointment to search the records of the strata company.

Shane White
Strata Title Consult
E: [email protected]

This post appears in Strata News #532.

Question: Should the Minutes Of Meetings consist of Minutes of resolutions or Minutes of narration? What is an acceptable practice?

Our Strata Manager says it is sufficient to only put “Minutes of resolutions” in the Minutes Of Meetings without including the “Minutes of narration”, the discussion/reasons which are relevant to the resolution.

Is this considered an acceptable practice?

Answer: It is often useful and appropriate to combine elements of the two.

The Strata Titles Act 1985 as amended 2018 is silent on the style or class of minutes.

There are two styles or classes of minutes – Minutes of Resolutions and Minutes of Narration.

It is often useful and appropriate to combine elements of the two.

While it isn’t often all that is necessary to record the actual words of the resolutions that have been passed, it might be desirable that the minutes contain some record of a matter such as a motion not carried or proceedings not of a type to culminate in a resolution, or to cover a preliminary discussion about an item to be pursued at a later meeting; to place on official record such things as instructions to officers, terms of a contract or agreement, financial accounts, dates, where the precise detail is important but was not embodied in the actual resolution; to make a permanent record of an expressed appreciation, thanks and tributes for special service. Circumstances may make it desirable for the minutes to records a summary of reasons that led to a resolution or to general agreement not to come to a decision at that stage. So many instances occur where it is useful for a minute to include both styles of drafting. To remember is that minutes should be an accurate account of the proceedings at the meeting; minutes are not a transcript of what occurred at the meeting – they are a record of resolutions and matters ancillary thereto, not of every word used in the course of a meeting.

The Strata Company has a discretion as to how it keeps its minutes, provided it faithfully records all that is required to be recorded. They must be concise, clear, not prone to misinterpretation or more than one interpretation.

Source: Horsley’s Meetings – Procedure, law and practice.

Marietta Metzger-Meder
magixstrata
E: [email protected]
T: 08 6559 7498

This post appears in Strata News #530.

Question: At an AGM, which resolution do we use to adopt the minutes of the previous AGM?

At an AGM, which resolution do we use to determine whether or not the minutes of the previous AGM are confirmed as a true and accurate record of the proceedings of the meeting? Do we use a Unanimous, Without dissent, Special, or Ordinary resolution to determine the vote?

Answer: The Dept of Commerce provides a guide on how a general meeting is run.

Section 127(4) of the Strata Titles Act 1985 provides how business is determined on the agenda.

127. Annual general meetings of strata company

4. All business transacted at an annual general meeting other than that referred to in subsection (3) is taken to be special business.

Section 123(7) of the Strata Titles Act 1985 provides for what is an ordinary resolution. There is nothing contained within the act to say that any other type of resolution is required for the adopting of the minutes of the previous meeting.

(7) A resolution of a strata company is an ordinary resolution if —

1. for a resolution passed other than at a general meeting, 14 days’ notice of the terms of the proposed resolution is given to each member of the strata company before voting on the resolution opens; and
2. it is passed when counted as required under section 122 (1)(c) —
   
   1. by number — by more than 50% of the number of lots for which votes are cast; or
   2. by unit entitlements — by more than 50% of the sum of the unit entitlements of the lots in the scheme for which votes are cast.

Note for this subsection:

For an ordinary resolution, the question is determined against the resolution on an equal number of votes whether counted by number or by unit entitlements.

The Dept of Commerce provides a guide on how a general meeting is run: Meetings

This resource also provides details on how a meeting should be run, including the adopting of the minutes of the previous meeting.

Shelley Fitzgerald
Strata Alliance
E: [email protected]
P: 9330 3959

This post appears in the September 2021 edition of The WA Strata Magazine.

Question: Can a motion without notice be put to an AGM?

Answer: It is not possible to arrive at an AGM with a motion that you want to put to owners and have a discussion and a vote.

Simple answer is yes but not without 14 days-notice under the Strata Titles Act 1985.

Any motions which are not set out in the Act (voting for Councillors, budgets etc) come under the category of Special Business and usually require a Special Resolution or Resolution without Dissent vote.

The Act states that there needs to be a notice period of 14 days so that all owners have prior notice of the motions being discussed and decided at the AGM. Therefore, it is not possible to arrive at an AGM with a motion that you want to put to owners (who are present) and have a discussion and a vote, as the minimum notice period has not been met.

At the conclusion of the meeting, owners often engage in general chat about their scheme under the section “any other business” but decisions can’t be made and ratified – generally delegated to strata council.

If you have missed the deadline for having your item of special business included on the agenda, the options open are to call an EGM, wait for the next AGM or send out a Circular Resolution to all owners.

Jordan Dinga
Abode Strata
E: [email protected]
P: 08 9368 2221

This post appears in the September 2021 edition of The WA Strata Magazine.

Question: Once a request has been submitted for an EGM, does a meeting date need to be set within 21 days?

Once a request has been submitted for an EGM, does a meeting date need to be set within 21 days? We need urgent motions to be passed at the EGM.

Alternatively, can I put up a Notice for a motion by resolution (similar to a petition) distributed to all owners electronically with a voting period of 14 days? Would any resolution from that motion be binding on the strata company?

Answer: The submission of a written request to call an EGM is no guarantee that the strata council will approve and authorise a general meeting to take place.

I will give you an overall explanation to your enquiry:

There are two types of General Meeting, these being an Annual General Meeting (AGM) which must occur not more than 15 months after its previous general meeting. section 127 (1) of the Strata Titles Act 1985.

The other type of General Meeting being an Extraordinary General Meeting (EGM) which may either be “convened by the council of the strata company as the council thinks fit” section 128 (2)(a) of the Strata Titles Act 1985.

It might be that a group of owners are desirous of wanting an extraordinary general meeting to be convened. In this instance the “owners of 25% or more of the unit entitlements” may submit a written request to the strata council to convene a meeting.

The submission of a written request to call an EGM is no guarantee that the strata council will approve and authorise a general meeting to take place.

Further reading of section 128 (3) of the Strata Titles Act 1985 indicates that if the strata council does not take steps to organise the EGM within 21 days, then the owners making the request or any of them holding more than 50% of the unit entitlements, take steps to convene the meeting.

So, this section gives the strata council a period of 21 days to send out the required notice and agenda for the EGM; if they fail to do so then the owners making the request can convene the meeting in the same manner as meetings are to be convened by the council.

When reading section 128(5) of the Strata Titles Act 1985, a meeting that is requested to be convened under section 123 (3) of the Strata Titles Act 1985 “must not be held after the expiration of the period of 3 months starting on the day the request was made”.

In summary:

The strata council, even if requested to convene an EGM, have a period of 21 days to decide whether or not to convene an EGM.

If they do not send out notices within the 21 day period, then the requisitionists may convene the EGM in the same manner as the strata council would have been required to do so.

The requisitioned EGM must be convened within a period of 3 months from the date of the request.

The answer you have previously been given “The Council have to set the date within 21 days from the request, and the meeting has to be held within 3 months from the request” is correct.

You have not expressed the nature of the motions which you say are of an urgent nature.

If the request is so urgent then surely you would be able to raise the numbers to get 50% of the owners to attend or respond if a meeting was called.

The nature of the motion has not been specified and this also has bearing on what the owners are going to be voting on.

The Motion may require a certain standard of resolution – Unanimous, Resolution Without Dissent, Special or Ordinary resolution.

You would be unable to put up any motions by meeting notice or “circular” if you have not followed through with the requirements of the Act to requisition the strata council to convene the EGM in the first place.

Failure to follow the meeting requirements as laid down in the Act would render any resolutions invalid and not binding on any owner or the strata company.

The voting period for some resolutions requires a period of 28 days to elapse.

Depending on the motion and resolution required to be obtained, some owners may not be able to vote if they are unfinancial (section 123 of the Strata Titles Act 1985).

Shane White
Strata Title Consult
E: [email protected]

This post appears in the September 2021 edition of The WA Strata Magazine.

Question: Are Strata Managers in WA required to make Zoom available for lot owners living out of town?

Answer: Yes they are!

Yes they are! Under section 131 of the new act!

131.Holding meetings remotelyM/strong>

1. A person (including a proxy of a member of a strata company) may, in accordance with any requirements of the scheme by‑laws, attend, and vote, at a meeting of a strata company by telephone, video link, internet connection or similar means of remote communication (provided that provision of relevant facilities does not place an unreasonable burden on the strata company).
2. A person attending a meeting by remote communication is taken to be present at the meeting.

Jordan Dinga
Abode Strata
E: [email protected]
P: 08 9368 2221

This post appears in Strata News #508.

Question: Can lot owners attend Council of Owner meetings?

The WA Strata Titles Act amended 1 May 2020 does not address whether any lot owner can attend a meeting of the Council of Owners. Does the absence of any mention, and in particular the absence of any restriction of lot owner attendance at Council of Owners meetings, mean that lot owners are entitled to the meetings of the Council of Owners?

Answer: The Act is absent in relation to the attendance by lot owners except in cases where they are appointed as a proxy by one of the council members.

The legislation provides the Council of Owners the ability to conduct business, adjourn and otherwise regulate their meetings as they think fit, with the provision of convening a meeting with 7 days notice upon request from a member. The Act is absent in relation to the attendance by other lot proprietors except in cases where they are appointed as a proxy by one of the council members.

Owners are not entitled to attend Council of Owners meetings as the Councillors are able to conduct business as they think fit. Councils may invite other owners to meetings if they wish to have additional input/assistance or expertise on certain matters. If an owner were wanting to attend a specific meeting to present an issue then they can apply to the council to be invited to the meeting.

The Council of Owners is a voluntary role and in some circumstances may be onerous. For this reason, many councils set time limits or other parameters for their meetings and these should be respected. All owners have the ability to nominate to the Council at the AGM, or offer their services to the council members for those occasions when additional help is required.

Shelley Fitzgerald
Strata Alliance
E: [email protected]
P: 9330 3959

This post appears in the July 2021 edition of The WA Strata Magazine.

Question: Our strata council has not published any minutes from the last council meeting held over a year ago. Is this legal?

Our strata council has not published any minutes from the last council meeting held mid February 2020.

Moving forward, the council is going to have more frequent meetings and the minutes for the meetings will always be published two meetings with two meetings delay. Is this legal?

Answer: Acceptance of minutes of a council meeting should take place at the next meeting of the council of owners.

In Western Australia the standard Governance By-Law 9 deals with ‘Powers and duties of the secretary of the Strata Company’. Governance by-law 9 (a) states “The powers and duties of the secretary of a strata company include the preparation and distribution of minutes of meetings of the strata company and the submission of a motion for confirmation of the minutes of any meeting of the strata company at the next such meeting.”

Therefore, acceptance of minutes of a council meeting should take place at the next meeting of the council of owners. It is good practice to ensure minutes are issued in a timely manner post meeting whilst the memory of proceedings for those present at the meeting is still fresh. It is a good idea for attendees to review these when received and note any discrepancies for discussion at the next meeting.

Minutes have to be kept. Section 104(b)(i) requires that the strata company keep records of its resolutions and decisions of its council for a period of seven years.

In terms of issuing / publishing or making council of owners minutes readily available to all owners, there is nothing within the legislation that requires the council of owner’s to do so. Some councils choose not to whilst others will issue them automatically.

If a lot owner not on the council wants to receive minutes of council meetings, I would suggest they approach the council with this request. The legislation does provide for the provision of information by a strata company and this process can be used by an owner to obtain documentation otherwise.

Luke Downie
Realmark
E: [email protected]
P: 08 9328 0999

This post appears in the May 2021 edition of The WA Strata Magazine.

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 1 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. 

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.

Question: Where can I find the protocol procedure as a member of the COO to call an urgent meeting?

Seems our members prefer to hide behind not wanting to respond to emails if the matter is of a delicate nature. We have a COO of 6 for a 17 lot strata.

Can one COO call a meeting ?

Answer: If the matter is of extreme importance then notice in writing can be sent giving the requisite 7 days notice and details of the items of business and reason for calling the meeting.

I have answered the questions as I find them in the Schedule 1 By-laws.

The protocol and procedure for calling a Council of Owners meeting in currently contained in Schedule 1 By-law 8 (2) (a).

If the matter is of extreme importance then notice in writing can be sent giving the requisite 7 days notice and details of the items of business and reason for calling the meeting.

The by-law specifies that any member of the council can call a meeting.

Shane White
Strata Title Consult
E: [email protected]

This post appears in Strata News #388.

Question: Can you change the date of the AGM if you cannot attend and want to? How many owners have to request a date change?

Answer: With the strata reforms, if owners cannot attend in person they do have the option to “attend” via electronic means.

With the strata reforms, if owners cannot attend in person they do have the option to “attend” via electronic means, phone hook-up or a platform like Zoom provided the strata company or the managing agent offer a Zoom type facility. It is important that all owners are engaged.

It is beneficial that AGM’s are organised to endeavour to cater for the majority of owners, which is not always easy.

However for an individual owner to have the date changed they would need to act early, speak to their strata manager and or council member. Failing that they would need a majority of owners onside to change the date.

This would not be an easy exercise. What I would suggest is that owners stay involved and participate in their strata company activities, be a proactive owner and stay engaged.

Brian Rulyancich
StrataTAC
E: [email protected]
P: 0428 970 067

This post appears in Strata News #376

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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