WA: Q&A Notices, Motions and Meeting Minutes

Prior to the amendments to the STA, if you were sending out a notice of General Meeting, you were required to give all owners 14 days notice, allowing for up to five additional days for snail mail to deliver the notice.

If an owner lived interstate or overseas, additional time would have to be added accordingly.

The STA has since been amended, requiring overseas owners to have an address for service within Australia., OR an email address by which they can be contacted.

The STA defines a working day:

Section 3 working day

working day means a day other than a Saturday, a Sunday or a public holiday throughout the State.

Previously, some strata schemes registered a by-law that could allow for service by means other than by snail mail.

Amendments to the Act

So, moving right along to 2020, the STA now legislates that notices can be sent by letter, fax or other electronic means (keep your email address up to date. It’s your job, not the strata managers).

The STA requires that the recipient of the notice is given 14 clear days to mull over what they have received.

This was contained in the schedule 1 by-laws but is part of the legislation under section 129 STA.

129. Notice requirements for all general meetings

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.

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.

When does the 14 days start?

Meeting notice prepared today.

Allowing five days for service by mail.

This is a total of 19 days before the meeting date.

The notice would need to be sent by the close of business on the 20th day at the latest.

The notices are given to allow for receipt of the information contained in the notice to be read before the day of the meeting.

What about the new changes?

The changes to the STA allow for service of notices to be sent by electronic means – email fax or other methods of electronic delivery which may be able to be accommodated by the strata manager.

I once had a specific task to send out notices for an EGM to 64 owners. Had I been required to send the notices by mail only, I would have had to add at least an extra 14 days for postal service to enable the 14 days notice period to take effect.

Fortunately, I didn’t have to lick the back of one envelope or any stamps, as everyone had an email address.

Other things to consider

215. Address for service

An address for service provided under this Act must be within Australia.

An electronic address may be provided as an additional address for service under this Act.

216. Service of documents on strata company, owners and others

This section is too long to include in this article.

I was unable to find any reference to the 14 days notice period that referred to “working days” even though it is defined in section 3.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #686.

Question: Is it a breach of legislation if the AGM is conducted only via Zoom and not in person at a designated location?

Answer: The legislation does not stipulate a meeting MUST be held in person.

The legislation does not stipulate a meeting MUST be held in person. Only that the location must be stipulated within the notice (Strata Title Act 1985 Section 129(2)(a) – Notice requirements for all general meetings).

However, it would likely be in the best interest of the strata company to offer a means to attend in person for those who wish to do so or are unable to attend remotely. (Strata Title Act 1985 Section 131(1) – Holding meetings remotely).

Section 131 Holding meeting remotely

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).

A person attending a meeting by remote communication is taken to be present at the meeting.

Rick Blampey SVN Perth E: rblampey@svn.com.au P: 08 9427 7955

This post appears in the September 2023 edition of The WA Strata Magazine.

Question: As an owner not on the council, can I attend council of owners meetings without seeking approval before the meeting?

I attended a council of owners meeting. The chair challenged why I was in the meeting room. When I asked for his authority to challenge my attendance, he responded, “I am the chair, and you need to seek permission to attend the meeting.”

The meeting was opened, and the chair addressed the issue of my attendance, stating I had to seek permission to attend the meeting and there were confidential matters the council needed to discuss. A motion was put and passed asking me to leave the meeting, which I did.

Can owners who are not committee members attend council of owners meetings? The by-laws of the survey strata plan permit owners to attend meetings of the strata company.

Excerpt from our by-laws:

A proprietor or, the proprietor’s nominee, may attend a meeting of the strata company. That proprietor (or its nominee if applicable) may address the meeting only if the strata company passes a resolution authorising the person to do so.

As an owner not on the council, can I attend council of owners meetings without seeking approval before the meeting?

Answer: Council of owners’ meetings are closed meetings, and attendance by persons other than elected council members is by invitation only.

Without seeing the by-laws of this particular scheme and only relating to the excerpt from the by-laws provided, in my personal opinion, that by-law appears to be invalid as each owner has a right to attend a meeting of the strata company, i.e. general meetings according to the Strata Titles Act 1985 as amended 2020. Further, in my opinion, council of owners’ meetings are closed meetings, and attendance by persons other than elected council members is by invitation only or where a council member has explicitly appointed another owner of the scheme to attend the meeting on the council member’s behalf.

I suggest the strata company – with legal assistance – review their by-laws in relation to validity and enforceability to ensure these do not cause further disputes and are not in contravention of the Strata Titles Act 1985 as amended 2020.

This advice does not constitute legal advice and we recommend that the owner obtains their own legal advice to suit the circumstances.

Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 08 6559 7498

This post appears in the September 2023 edition of The WA Strata Magazine.

Question: How can we ensure all points and discussion topics are completely and correctly minuted? Would it be better if our strata manager records the meeting and transcribes it later?

How can we ensure all points and discussion topics are completely and correctly minuted? Our strata manager chairs the meetings. Over the years, when AGM minutes are published, key points have been missed. Obviously, there is a lot to write down. Can the strata manager record the meeting and transcribe it later?

Answer: Recording what everyone said at the meeting is not what we’re out to do. That’s not the purpose of the AGM. All we’re looking for is a motion that directs the Council on what they need to do.

I don’t prescribe to the idea that the strata manager needs to minute verbatim. It’s not relevant. In the end, the only relevant point is ‘what was the motion’? Have you detailed the motion? For example, ‘it was resolved that the strata company direct the council to appoint John Doe to fix the brick wall at a cost not to exceed $5,000’. Now, did that pass? Yes, it did. That’s all that needs to be recorded. We don’t have to talk about all the other contractors that were considered, or anything else. It really just comes down to the specifics of the motion and did a pass. Yes or no.

We don’t need to talk about or minute anything else. If there’s anything critical that could lead to a litigious matter, you may make a few extra notes. But recording what everyone said at the meeting is not what we’re out to do. That’s not the purpose of the AGM. All we’re looking for is a motion that directs the Council on what they need to do.

Scott Bellerby B Strata E: scott.bellerby@bstratawa.com.au P: 08 9382 7700

This post appears in the March 2023 edition of The WA Strata Magazine.

Question: What are the two things a lot owner can do prior to their AGM to make the meeting run more smoothly.

Answer: Your AGM only happens once a year.

The AGM is about setting an agenda for the management of your property, which is arguably your most valuable asset. What can you do to help it run smoothly?

The Agenda

As an owner, read the agenda before the AGM. We all like to have efficient and productive AGMs and we don’t like to have AGMs that drag on for three or four hours. Long meetings can happen if owners haven’t read the agenda before attending.

Submit any questions three or four days before the meeting. That way, your strata manager and council is prepared and can maybe even answer the questions prior to the AGM so they don’t have to take up additional time during the meeting.

Your AGM happens once a year, so please just to take 10 minutes prior to the meeting, ideally, a couple of days before the meeting, and go through the agenda. It can save everyone a lot of time.

Proxy Forms

Have your proxy forms ready. The number of times I’ve had co-proprietors turn up and say ‘My wife/husband’s here, I don’t need to fill in a proxy form’ and I say, ‘Technically yes, you do. I’m asking both of you to fill the proxy form in, and can you please let me know who’s going to be raising their hand to vote on the motions?’.

I don’t know how many times every year the same people have the same argument. It’d be great if owners could fill in that proxy form. They can tick enduring, so they don’t have to worry about it next year.

Scott Bellerby B Strata E: scott.bellerby@bstratawa.com.au P: 08 9382 7700

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

Question: With the implementation of the 10 year maintenance plan, how can owners manage increasing repayments to manage both levy requirements?

In WA, the 10 year plan has been introduced. Levies for the 10 year plan can be as much as $1,000 per unit per year in addition to the quarterly levies. Our quarterly levies need to be increased for CPI as they have not been increased since 2018. How can owners manage increasing repayments to make both levy requirements?

Answer: Even though the increase in levies is hitting your personal budget now, they are contributing to saving for major maintenance further down the line.

In WA, where the 10 year plan is a newer requirement, it can seem that all of a sudden you’ve got to pay much higher costs on an ongoing basis for your apartment. Remember that those levies are part of a savings plan. Even though they are hitting your personal budget every quarter now, they are contributing to saving for major maintenance further down the line.

In the past, you may have been paying the odd special levy or an additional levy to pay for repairs and you haven’t really thought about that as much as when it’s coming out on a quarterly basis. You’re much more conscious of it. It’s something you have to get used to over time. I know it can be difficult when it’s a big additional amount to factor into your personal budget, but it will make a big difference to the building over time if you have those funds available.

Michael Ferrier Eyeon Property Inspections E: michael.ferrier@eyeon.com.au P: 02 9260 5510

This post appears in the August 2022 edition of The WA Strata Magazine.

Question: One of our owners recently passed away. We are unaware in what capacity the daughter will be acting. What rights does she have to attend the AGM etc?

One of the owners of our Strata of six (6) has recently passed away. Another one of the Owners who was close to the deceased sent out an email advising the Strata that the daughter of the deceased will be handling all of the deceased affairs.

To date, the Strata has not had any direct contact from the daughter and as a consequence, the Strata is unaware in what capacity the daughter is/will be acting. As our AGM is next week, this situation now poses a number of questions:

Is the daughter entitled to get the Agenda for our AGM?

Answer: The Letters of Administration or the Probate appointing an Executor will provide a legal representative for the deceased owner who is then able to deal with the strata lot.

On the death of an owner in a strata scheme.

From the details provided, it sounds like the deceased owner was the sole owner of the property.

Based on the assumption that there was only one owner, the deceased may have left a Will or not.

The family of the deceased are best placed to sort out the Probate requirements.

If there was no Will then the owner has died “Intestate”, meaning that there is no Will or legal document appointing an Executor for the Estate of the deceased.

The descendants of the deceased may then apply to the Probate Office for Letters of Administration to manage the estate of the deceased.

If there is a Will, an Application to the Probate Office is required so that an Executor of the Estate can be appointed.

None of these issues are part of the Strata Titles Act.

However, the Letters of Administration or the Probate appointing an Executor will provide a legal representative for the deceased owner who is then able to deal with the strata lot.

There would have to be some form of registered Probate which is the official paperwork that would allow the daughter to deal with the property if she was appointed as the Administrator or Executor of the Estate.

So, at this point in time, without the official paperwork the daughter can merely attend but has no voting rights.

The sending out of an Agenda would be the polite thing to do.

The strata company should ensure that the daughter is advised to seek proper Legal Advice from a Legal Practitioner to enable her to obtain Probate for the Estate.

In the event that there was a Power of Attorney document in force then those rights and powers ceased on the death of the Lot Owner.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #591.

Question: We have a by-law from several years ago stating minutes do not have to be taken at meetings. In our strata scheme, we have 4 strata title units. Is it legal to take no minutes considering we are required to have AGM?

Answer: Scheme bylaws for a 3, 4 or 5 lot scheme may exempt the strata company from a designated function, however, we do recommend that AGM minutes are being kept.

Section 140 (2) of the Strata Titles Act 1985 as amended states that scheme bylaws for a 3, 4 or 5 lot scheme may exempt the strata company from a designated function.

Section 140 (4) of the Strata Titles Act 1985 as amended then stipulates what a designated function is and it goes on to say that – apart from other functions – the keeping of Minutes of meetings can be exempt.

The former version of the Strata Titles Act did also allow a 3, 4 or 5 lot scheme to be exempted from certain provisions under the Act including the keeping of minutes of meetings and books of accounts. However, the previous Standard Bylaws 11 to 15 in relation to General Meetings, Proceedings at general meetings, moving motions and voting procedure have all been deleted by the amended Strata Titles Act and provisions have been included now into the Strata Titles Act 1985 as amended 2018.

If the strata scheme of this 4 lots scheme has a bylaw registered under the former Act which exempts the strata company not to keep minutes of meetings (and most likely the standard bylaws in relation to General Meetings have been repealed at the same time – if not, then they have been deleted by the amended Strata Titles Act ), it really now only exempts it from keeping minutes as Section 127 requires a Strata Company to hold an Annual General Meeting.

Obviously, in order to provide evidence that the Strata Company has complied with Section 127 of the Strata Titles Act 1985 as amended 2018, we do recommend that minutes are being kept of those Annual General Meetings, even if the minutes in short state the date, time, who attended and the business transacted or any other form of evidence that the legal requirements have been met.

We recommend that the Strata Company seeks further legal advice in having their bylaws consolidated which would eradicate any doubt about the bylaws and the requirements under the Strata Titles Act in relation to conducting meetings and keeping minutes.

This advice does not constitute legal advice and we recommend that the owner obtains their own legal advice to suit the circumstances.

Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 08 6559 7498

This post appears in the August 2022 edition of The WA Strata Magazine.

Question: What is the procedure for setting a council meeting? Is sending an email with the time and date sufficient? I expected a more formal notice of meeting with the strata Co number, an agenda, date, time and location.

Answer: Check your Strata Company bylaws.

The bylaws of the Strata Company will provide the guidance on how the Council Meetings are to be convened.

Standard Governance Bylaws allow the Council to meet as they see fit. If there are members on the council that have been reappointed from a previous year and their previous practice was to send out an email providing the day/date and time then that may be determined by the members as being sufficient. It will be dependent on the majority of the members and how they wish to convene their meetings, and as they are volunteers, the ability and time restraints of the members may also be a consideration.

Standard meeting practice may provide for agenda items to be circulated, and this is certainly good practice however not a legislative requirement for the council.

The Standard Governance Bylaws offer the following in relation to the meetings of council:

8. Meetings of council

At meetings of the council, all matters must be determined by a simple majority vote.

The council may —

meet together for the conduct of business and adjourn and otherwise regulate its meetings as it thinks fit, but the council must meet when any member of the council gives to the other members not less than 7 days’ notice of a meeting proposed by the member specifying in the notice the reason for calling the meeting; or

employ or engage, on behalf of the strata company, any person as it thinks is necessary to provide any goods, amenity or service to the strata company; or

subject to any restriction imposed or direction given at a general meeting of the strata company, delegate to 1 or more of its members such of its powers and duties as it thinks fit, and at any time revoke the delegation.

9. Powers and duties of secretary of strata company

subject to the Strata Titles Act 1985 sections 127, 128, 129, 200(2)(f) and (g) the convening of meetings of the strata company and of the council.

Shelley Fitzgerald Emerson Raine E: shelley@emersonraine.com.au P: 9330 3959

This post appears in the June 2022 edition of The WA Strata Magazine.

Question: Are motions legal if owners are only provided with 11 days notice via email instead of the required 14 days notice? Surely if the basic notice is in error, the meeting decisions are not valid?

Answer: Subsection (3) covers “accidental omission” or “non receipt” of a notice by the owner of a lot, stating that this does not invalidate any proceedings at the meeting.

Section 129 (1) of the STA states the notice consists of “at least 14 days” for every general meeting.

Subsection (3) covers “accidental omission” or “non receipt” of a notice by the owner of a lot does not invalidate any proceedings at the meeting.

In this instance you have been given 11 days notice which is somewhat less than 14. Although not ideal, you have received a copy.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #575.

Question: At an Extraordinary General Meeting, can a motion on the agenda be amended?

Answer: Amending a motion would be dependant on the type of motion that is under notice.

An EGM is normally convened for a specific purpose or to determine specific actions.

Section 128 of the Strata Titles Act notes that the Council may convene an EGM if they think fit to do so, or they must convene if requisitioned by 25% or more of the unit entitlements of the lots.

There are also several different types of resolutions ie: Unanimous, Special, Resolution Without Dissent, Ordinary and the newly implemented Circular Resolution. The circular resolution can be any of the other types of resolutions however done via circulation of documents and no physical presence required. All resolutions require at least 14 days’ notice to the proprietors prior to the meeting for the voting to be valid.

I note too that the Unanimous, Special and Resolution Without Dissent have a 28 day voting period from the date of the meeting.

Amending a motion would be dependant on the type of motion that is under notice. If it was an Unanimous, Special or Resolution Without Dissent, these types of motions cannot be amended at the meeting, they would be put to the vote and either be carried or fail (noting that there is 28 days for the owners to vote). If the original motion were to fail, then another EGM may be required for the voting to take place on the amended resolution, with all owners being provided another 14 days notice and 28 days to vote from the date of the meeting.

Amending motions, with the new legislation in place and the updates in technology, are very difficult to manage. Owners now have the ability to vote on every motion prior to the meeting via electronic software. With votes being received prior to the meeting, the owners do not have the opportunity to vote on an amended motion.

An ordinary resolution, if the EGM were to be via zoom or physical presence, may be able to be amended if supported by the majority of the owners present or represented at that meeting. If voting is done via a circular resolution or prior electronic voting, an amendment would not be able to be put to the meeting as the voting has been allocated on the original motion under notice.

It is important for the Strata Company to ensure the motion under notice to the proprietors is clear, specific and detailed which will assist in minimising confusion and queries.

Shelley Fitzgerald Emerson Raine E: shelley@emersonraine.com.au P: 9330 3959

This post appears in the April 2022 edition of The WA Strata Magazine.

Question: What is the minimum entitlement required to be able to call an AGM? Is there a specific step by step process that needs to be followed?

What is the minimum entitlement required to be able to call an AGM? The Act states an owner needs 25% to call an EGM – does this apply to AGM’s?

Is there a specific step by step process that needs to be followed? Does notice need to be given?

Answer: The Council of owners (COO) has the responsibility to call the AGM within 15 months of the AGM date.

The Council of owners (COO) has the responsibility to call the AGM within 15 months of the AGM date.

If the Council doesn’t call the AGM then you would need to request an EGM as per the requirements of the Act.

The requirements for calling the EGM are specified in sections 128, 129 and 130 of the Act.

A requisitioned EGM would need to have a quorum of 50% as per section 128(3).

A Notice is required to be given for all General Meetings – section 129.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #559.

Question: Do proposed AGM resolutions have to have a seconder before being put to a vote?

Answer: No

In short, no.

In terms of legislative requirements, there is no mention of a seconder for a motion to be voted on. If the motion is in the agenda then it technically already has had a mover (i.e. council members or individual owner whom inserted the motion) and that is all that is required to open the voting.

Just because no one seconded it in the first instance, shouldn’t be a reason for one individual to not be given the opportunity to present a motion for discussion and then voting on by all owners.

Jordan Dinga Abode Strata E: abode@abodestrata.com.au P: 08 9368 2221

This post appears in the February 2022 edition of The WA Strata Magazine.

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

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.
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

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.

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.

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.

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: shane.white@stratatitleconsult.com.au

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.

This advice does not constitute legal advice and we recommend that the owner obtains their own legal advice to suit the circumstances.

Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 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

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 —

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

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 Emerson Raine E: shelley@emersonraine.com.au 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: abode@abodestrata.com.au 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: shane.white@stratatitleconsult.com.au

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 remotely

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).

A person attending a meeting by remote communication is taken to be present at the meeting.

Jordan Dinga Abode Strata E: abode@abodestrata.com.au 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 Emerson Raine E: shelley@emersonraine.com.au 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: ldownie@realmark.com.au 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: shane.white@stratatitleconsult.com.au

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: shane.white@stratatitleconsult.com.au

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: shane.white@stratatitleconsult.com.au

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: shane.white@stratatitleconsult.com.au

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: shane.white@stratatitleconsult.com.au

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: shane.white@stratatitleconsult.com.au

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: strata@stratatac.com.au 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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