Pamela Williamson v Owners Corporation Strata Plan 7348

[2015] NSWCATCD 65

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Pamela Williamson v Owners Corporation Strata Plan 7348 [2015] NSWCATCD 65

Hearing dates:

7 April 2015

Decision date:

06 May 2015

Jurisdiction:

Consumer and Commercial Division

Before:

Geoffrey Meadows Senior Member

Decision:

1. The election of the executive committee of Owners Corporation SP 7348 held at the Annual General Meeting on 25 June 2014 was invalid as a result of breaches of the SSM Act.

2. The appeal is otherwise dismissed

Catchwords:

Strata and Community Schemes - appeal from Adjudicator’s order - order invalidating annual general meeting resolution - non-compliance with SSMA at AGM - s 153(2) discretion - whether there is a discretion in the circumstances

Legislation Cited:

Civil and Administrative Tribunal Act 2013
Strata and Community Schemes Act 1996

Category:

Principal judgment

Parties:

Pamela Williamson (applicant);
Owners Corporation Strata Plan 7348 (respondent)

Representation:

Solicitors:Sam Ingui, Solicitor—Applicants;
Respondent represented by Ms Taouk (Strata Manager), Ms Tchouk and Ms Feeder

File Number(s):

SCS 15/04430

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. On 3 October 2014 the Ms Pamela Williamson (the Appellant) filed an application for an Adjudicator’s order seeing three orders pursuant to s 38 of the Strata Schemes Management Act 1996 (the SSM Act):

(1) Inference [sic] with use + enjoyment of common property;

(2) Not holding meeting in accordance with the Act;

(3) Failure to perform repairs with prior notice + consent.

2. Attached to the application was a 5-page document headed “Statement of Pamela Mary Williamson”. At paragraph 2 of that document the Appellant sought additional orders:

“Section 153 -   to invalidate the appointment of office bearers to the Executive Committee (EC) following the Annual General Meeting in June 2014 (2014 AGM);

Section 154 - to invalidate the actions of the owners at the 2014 AGM in denying the Applicant an opportunity to nominate herself onto the EC or as an office bearer;

Section 156(1) - An order for the EC to provide information relating to the garden hose and padlocks in their possession, having been purchased by MS Daphne Feeder and reimbursed by the Owners corporation.

I also seek a further order that the EC cease exclusive possession of all common property including the garden hose and padlocks.”

3. A large bundle of documents was also attached to the application. In accordance with the usual (and mandatory) protocol, written submissions were sought from interested parties. The Owners Corporation provided a large bundle of documents attached to written submissions and two further written submissions on behalf of the Appellant were also provided.

4. On 2 January 2015 Adjudicator Simon Hennings dismissed the application for the reasons attached to the decision. In view of the submissions made by the appellant, it will be helpful in the discussion below to extract a portion of Adjudicator Hennings’ reasons. At paragraphs 13 and 14 the Adjudicator wrote:

“13   In this matter, I accept the respondent’s submission that the majority of the Owners Corporation is content with only 2 people being on the Executive Committee and the majority at the meeting would still have elected Ms Daphne Freeder and Ms Nancy Tchou, even if the applicant had stood for election. I accept the Owners Corporation’s submission that the failure to comply with the provisions of this Act did not adversely affect any person, and that compliance with the provisions of the Act would not have affected the result of the election. The applicant has failed to provide sufficient evidence to persuade me otherwise. I am not persuaded to make the order sought.

“14 Additionally, the application pursuant to Section 154 of the Strata Schemes Management Act 1996 is dismissed as it is out of time. The Annual General Meeting was held on 25 June 2014. This application was lodged on 3 October 2014. Section 154(2) states that an application for an order under this section may not be made after 28 days after the date of the meeting at which the resolution was passed. The application is well out of time and dismissed.

5. On 20 January 2015 the Appellant filed this appeal application. Attached to that application was a letter from “Sam Ingui – Solicitor” which inter alia stated the following:

“In view of the material that has already been filed before the Tribunal for Adjudicator Orders in file SCS 14/50061, I request that that material be consolidated into this matter to avoid it having to be refiled.

In addition to appealing the decision of Adjudicator Hennings dated 2 January 2015 my client seeks orders for the enforcement of Executive committee (EC) obligations in Schedule 3 of the Strata Schemes Management Act 1996 (Act) in particular in relation to the breaches and failures of the EC to comply with the provisions of Party 2 clauses 6(1), 6(2), 693), 12, 14 and 16. In that respect my client seeks orders that the EC comply with their statutory duties and requirements.”

The letter goes on to make detailed and lengthy submissions in support of the appeal.

6. On 18 February 2015 both parties attended a directions hearing at which orders were made for the service of all documents on which the parties intended to rely at the hearing of the appeal. On the same date leave was granted to both parties to be legally represented.

7. On 27 February 2015 the Appellant, through her legal representative, Mr Ingui, requested three summons be issued, addressed to Ms Feeder and Ms Tchou (both current members of the executive committee) and to Relm Property Group Pty Ltd, the strata manager. The summonses addressed to Ms Feeder and Ms Tchou contained identical schedules, seeking:

(1) Copies of all records, correspondence, emails, letters, documents, electronic communications and your files in relation to any Executive committee actions taken by you from 26 April 2014 to date.

(2) All communications and other records held by you in relation to communication between you and your other Executive committee member, other owners of SP7348 and the Strata Manager – Relm Property Group Pty Ltd from 26 April 2014 to date.

(3) All quotes, records and documents relating to construction work and repairs at SP7348 from 26 April 2014 to date.”

8. Those summonses were returnable on 25 March 2015. Senior Member Cohen made orders for access to the documents produced, in each case giving the Appellant seven days access from 25 March 2015, and the respondent seven days access from 1 April 2015. I note that the Registry had forwarded Notices of Hearing to the parties on 2 March 2015, setting the appeal down for hearing on 7 April 2014. The result of the orders made by Senior Member Cohen was that the respondent could not obtain access until Wednesday 1 April 2015, allowing just two business days to consider the documents, as Good Friday fell on 3 April 2015, Easter Monday on 6 April 2015 and the hearing itself on 7 April 2015.

9. On 30 March 2015 Mr Ingui for the Appellant wrote to the Tribunal asserting that Mesdames Feeder, Tchou and Taouk had not properly complied with the summonses, and seeking that the return of summons could be relisted, noting that “[i]n view of the time I am prepared to delay the relisting until the morning of the hearing on 7 April 2015”.

10. The parties to whom the summonses were addressed wrote to the Registry within a day or so, asserting that they had properly complied with the summonses. Further discussion relating to the summonses will be referred to below.

11. Practically from the filing of this appeal application, the respondent has sought an adjournment of the various hearings and the timetable for the service of evidence. In each case, the basis for the request related to the intention of the Owners Corporation to obtain legal representation although the persons representing the respondent also claimed other commitments in seeking to have the initial directions hearing adjourned until 1 May 2015. These requests were maintained right up to 2 April 2015, and were consistently refused; the hearing remained listed on 7 April 2015.

12. On at least two occasions, the applicant wrote to the Tribunal seeking to refine and confirm the orders being sought.

13. On 31 March 2015, Mr Ingui wrote to the Registry, as follows:

I refer to the Application for Tribunal Orders that have been filed in this matter dated 19 January 2015.

In order to make clear the nature of the orders being sought I confirm the following:

1. The Applicant seeks an order pursuant to section 153(1) of the Strata Schemes Management Act 1996 (SSMA) invalidating the election held by persons present at a meeting of the Owners Corporation on 25 June 2014 on the grounds that the provisions of clause 2(6) in Schedule 3 of the SSMA and regulations 17 and 18 of the Strata Schemes Management Regulations (2010) (Regulations) were not complied with by the Owners Corporation.

2. The Applicant also seeks a further order pursuant to section 153(1) of the SSMA invalidating the purported election held by persons present at a meeting on 23 March 2015 on the grounds that the provisions of clause 6 in Schedule 3 for the convening of the meeting were not complied with by the Executive Committee of the Owners Corporation.

3. The Applicant reserves her rights in relation to seeking an order under section 154(1) of the SSMA in relation to the resolutions passed at the purported general meeting of the Owners Corporation on 23 March 2015.

4. The Applicant also seeks an order under section 138(1) in relation to the dispute or complaint about the failure by the Owners Corporation to exercise a function conferred or imposed by or under the SSMA in relation to the Owners Corporation.

5. The Applicant does not seek orders pursuant to section 156.

6. The Applicant considers that the purported meeting held on 23 March 2015 was a flawed attempt to rectify the breaches by the Owners Corporation at the meeting on 25 June 2014. She now seeks further orders ancillary to and in addition to those sought under section 153(1) of the SSMA sought before the Adjudicator.

7. The Applicant otherwise reserves her rights in relation to the Application.

14. On the date of the hearing, 7 April 2015, the applicant handed to the Tribunal the following letter:

Application for Orders

The Applicant seeks the following orders:

1   An order invalidating the election of the executive committee of Owners Corporation SP 7348 held at the Annual General Meeting on 25 June 2014 as a result of breaches

a. clauses 2(6) of Schedule 3 and

b. 34(f) Schedule 2 of the Strata Schemes Management Act 1996 (Act) and

c. Regulations 17 and 18 of the Act's regulations.

2 An order invalidating the purported general meeting of Owners Corporation SP 7348 held on 23 March 2015 as a result of breaches to clause 6 and 10 of Schedule 3.

3   An order that a general meeting be held of Owners Corporation SP 7348 within 7 days for nominations to be called to join the Executive Committee.

4 An order treating as a nullity the resolutions passed at the general meeting of Owners Corporation SP 7348 on 23 March 2015 pursuant to Section 154(1).

15. Then, on 13 April 2015, the appellant wrote again to the Tribunal, annexing the letter of 31 March 2015 and 7 April 2015 and advising:

“I refer to the Application for Orders (Application) document that was filed by me on 7 April 2015, a copy of which is enclosed.

The Application should be read in conjunction with the letter that I sent on 31 March 2015. A copy of this letter is also attached.

The Orders that I seek for the Applicant in the Application are in relation to each relevant legislative provision so that

1. The Order being sought under paragraph 1 of the Application is pursuant to section 153(1) of the Strata Schemes Management Act 1996 (Act);

2. The Order being sought under paragraph 2 is pursuant to section 154(1) of the Act and

3.   The Order being sought under paragraph 3 is pursuant to section 138 of the Act.

I note that in the letter that I sent dated 31 March 2015 sought orders under these relevant provisions and I also sought those orders from you in my verbal submissions at the hearing of this matter on 7 April.”

16. I have determined this appeal on the basis of the orders sought on 07 April 2015 including the references to the relevant sections of the SSM Act.

The Legislation

17. An appeal must be brought by a party with standing to do so and within the time provided by the SSM Act:

177   Appeal against order of Adjudicator

(1)   Each of the following persons may appeal against an order made by an Adjudicator under this Part:

(a)   the applicant for the order,

(b)   a person who made a written submission on the application for the order,

(c)   a person required by the order to do or refrain from doing a specified act,

(d)   in the case of a leasehold strata scheme, the lessor of the strata scheme.

…

(3)   An appeal must be lodged:

(a)   in the case of an appeal against an order dismissing an application—not later than 21 days after the order takes effect, or

…

(4) Section 41 of the Civil and Administrative Tribunal Act 2013 does not apply in relation to the periods referred to in subsection (3).

18. The powers of the Tribunal in determining an appeal are provided in s 181:

181   Determination of appeal from order of Adjudicator

(1)   This section applies to the determination by the Tribunal of an appeal from an order of an Adjudicator.

(2)   The Tribunal may admit new evidence.

(3)   Unless the order appealed against is an interim order, the Tribunal may determine an appeal by an order affirming, amending or revoking the order appealed against or substituting its own order for the order appealed against.

(4)   If the order appealed against is an interim order, the Tribunal may determine the appeal by an order revoking the interim order or dismissing the appeal.

(5)   An order made by the Tribunal under subsection (3) has effect, and the provisions of this Act (other than the provisions conferring a right of appeal to the Tribunal) apply to it, as if it were an order made under the same provision as the order appealed against.

(6)   Subsection (5) does not exclude an appeal from an order of the Tribunal made under this section.

19. Orders relating to meetings and decisions of the owners corporation are set out in Division 6 of Part 4 of Chapter 5 of the SSM Act. The sections relevant to this appeal are:

Division 6 Orders relating to meetings and decisions of owners corporation

…

153   Order invalidating resolution of owners corporation

(1)   An Adjudicator may make an order invalidating any resolution of, or election held by, the persons present at a meeting of an owners corporation if the Adjudicator considers that the provisions of this Act have not been complied with in relation to the meeting.

(2)   An Adjudicator may refuse to make an order under this section but only if the Adjudicator considers:

(a)   that the failure to comply with the provisions of this Act did not adversely affect any person, and

(b)   that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution or have affected the result of the election.

(3)   An application for an order under this section may be made only by an owner or first mortgagee of a lot.

154   Order where voting rights denied or due notice of item of business not given

(1)   An Adjudicator may order that a resolution passed at a general meeting of an owners corporation be treated as a nullity on and from the date of the order if satisfied that the resolution would not have been passed but for the fact that the applicant for the order:

(a)   was improperly denied a vote on the motion for the resolution, or

(b)   was not given due notice of the item of business in relation to which the resolution was passed.

(2)   An application for an order under this section may not be made after 28 days after the date of the meeting at which the resolution was passed.

(3)   If an order under this section is made in relation to a resolution making a by-law or amending or repealing another by-law and the order has been recorded as provided by section 209, the by-laws have force and effect on and from the date the order is so recorded to the same extent as they would have had if the resolution had not been passed.

(4)   Subsection (3) is subject to the by-laws having been or being amended or repealed in accordance with this Act and to any relevant order made by a superior court.

(5)   An application for an order under this section may be made only by a person entitled to vote on the motion for the resolution concerned.

The Evidence

Appellant’s Evidence

20. The appellant provided a bundle of documents as follows (re-numbered):

TENDER BUNDLE INDEX

Title searches

1. Correspondence (in chronological order, newest - oldest)

1.1. Offer from Respondent to Applicant 18/3/15

1.2. Letter SAI to DF (Daphne Freeder) Secretary of Executive Committee (EC) 13/3/15

1.3 Response DF to SAI 11/3/15

1.4 Email SAI to DI re EC meeting and EGM 11/3/15

1.5. Email SAI to EC and Strata Manager (SM) re EC meeting and EGM 10/3/15

1.6. Letter SAl to DF re residential address for sending of summons 26/2/15

1.7. Letter SAl to MT re obligations of SM to keep up to date records 25/2/15

1.8. Email DF to NT and MT advising dates PMW is not available 10/2/15

2. Strata Manager's Documents

2.1. By—Laws SP 7348 23 Elizabeth Street, Ashfield

2.2. Management Agreement

2.3. Strata roll information pertaining to Unit 6

2.4. Handwritten note from MT to PMW sent in early 2013 indicating EC members

2.5. Email MT to PMW indicating members of the EC for year 2012-2013

3. Meeting Documents

3.1. Minutes of EGM held 23 March 2015

3.2. Notice of EGM for 23 March 2015

3.3. Minutes of EC Paper Meeting held 9 March 2015

3.4. Notice of EC Paper Meeting - Email dated 6/3/15 from NT

3.5. Hard copy of Notice of EC Paper Meeting as pinned to strata notice board

3.6. Email from DF to All - Minutes of EC Paper Meeting held 25/9/14 re; mediation

3.7. Notice of AGM 25/6/14

3.8. AGM 2014 Proxy form G Hunt (Unit 3) to PMW

3.9. Minutes of AGM held 24/6/13

3.10. Minutes of AGM 4/7/12

21. The appellant’s solicitor made lengthy and detailed submissions based on the above evidence. I note at this point that following the hearing, on 9 April 2015, Mr Ingui forwarded to the Registry by email a copy of a letter dated 09 April 2015 attaching a copy of the “Notes” that formed the basis of his oral submissions. The purpose for doing so was to aid me in considering those submissions in relation to the documents referred to in the Tender Bundle which was unfortunately not paginated. The Notes were intended to be no more than an aide memoire and I accept them on that basis to supplement the notes I made during Mr Ingui’s submissions.

Respondent’s Evidence

22. The respondent’s submissions and evidence consists of the 8-page document sent to the Registry on 1 April 2015 and handed to the Tribunal during the hearing, as well as the evidence provided to the Adjudicator. (I note the same is true for the appellant.)

23. Attached to this document were copies of a letter (and a corrected copy of the same letter) from the appellant’s solicitor, Mr Ingui, containing a lengthy response to an offer from the respondent to the appellant and also, it appears, a counter-offer. The letters are headed “Without prejudice save as to costs”. I have perused the letters sufficiently to determine what their subject matter is but not in detail. During the hearing I determined the letters could not be admitted as being without prejudice communications, unless of course the appellant seeks to rely upon them in any costs application.

24. Although the submissions were not served in accordance with Tribunal directions, the appellant and her solicitor had an opportunity to read the submissions and they did not seek an adjournment. I am satisfied the appellant is not prejudiced by me considering this document and no prejudice was alleged by the appellant by the time the hearing conclude.

22. The respondent’s representatives also made oral submissions during the hearing.

23. I note that various comments and assertions were made by both parties during the hearing, which I treat as unsworn evidence where appropriate. There was no formal cross-examination of witnesses.

Consideration and Determination

27. Before dealing with what I consider to be the primary issue in this appeal, it is appropriate to dispose of some of the orders sought by the appellant which can be done shortly.

28. I dismiss the application for orders 2 and 4 set out in paragraph 14 above. Those orders were not included in the original application for an Adjudicator’s order and cannot now be included in this appeal. While s 181 of the SSM Act permits fresh evidence to be adduced, that does not extend to entirely new orders in relation to issues which did not even exist at the time of the application for an Adjudicator nor when the adjudication decision was published. Evidence in relation to the Extraordinary General Meeting held on 23 March 2015 may be admitted in relation to the subject matter of the appeal, but that meeting is not itself part of that subject matter.

29. Order 3 sought by the appellant depends on the outcome of my decision in relation to order 1, to which I now turn.

30. The primary element of the appeal appears to be the submission that in denying the right of the appellant to nominate herself for election to the executive committee (which denial is agreed to be illegal pursuant to the provisions of the SSM Act) enlivens an application pursuant to s 153 of the SSM Act. Further, the appellant has vigorously submitted in regard to s 153 that the provisions of that section are prescriptive, meaning that the Adjudicator and this Tribunal must comply with the section.

31. The appellant then submits that the effect of s 153(2)(a) and (b) is to prevent the Adjudicator in this case from refusing to make the order sought because on the facts the appellant was both adversely affected by the denial of her right to nominate herself and there is no evidence or no persuasive evidence that would permit the Adjudicator to consider that compliance with provisions of the SSM Act would not have affected the outcome of the election.

32. I set out again the order sought by the appellant in relation to s 153(2)(a) and (b):

1   An order invalidating the election of the executive committee of Owners Corporation SP 7348 held at the Annual General Meeting on 25 June 2014 as a result of breaches

a. clauses 2(6) of Schedule 3 and

b. 34(f) Schedule 2 of the Strata Schemes Management Act 1996 (Act) and

c. Regulations 17 and 18 of the Act's regulations.

Clause 2 of Schedule 3 of the SSM Act is as follows:

2   Constitution of executive committees for strata schemes with more than 2 lots

(1)   This clause applies to an owners corporation for a strata scheme comprising more than 2 lots.

(2)   The executive committee is to consist of such number of members, being not more than 9, as the owners corporation may determine.

(3)   The members of an executive committee must be elected at each annual general meeting of the owners corporation.

(4)   A person is not eligible for election as a member of an executive committee unless the person is:

(a)   an individual who is an owner,

(b)   a company nominee of a corporation that is an owner, or

(c)   an individual who is not an owner but who is nominated for election by an owner who is not a candidate for election.

(5)   A person who is co-owner of a lot may not be a candidate for election as a member of the executive committee unless the person is nominated for office:

(a)   by an owner who is not a co-owner of the lot, or

(b)   by a co-owner of the lot who is not a candidate for election as a member.

(6)   An owner of a lot who is not a co-owner of the lot may nominate himself or herself for election as a member of the executive committee.

33. It is clear and is not in dispute that the appellant is an owner of a lot and so may nominate herself for election to the executive committee.

34. Although the evidence in relation to the history of executive committee elections in this scheme is not clear, I accept the submissions of the respondent that it has been the practice of the Owners Corporation to restrict the number of members of the executive committee to two, even if, as the appellant asserts, on occasion more than two may have been elected. However, that is not what the SSM Act requires.

35. Clause 34(f) of Schedule 2 of the SSM Act states as follows:

34   Special requirements for notice of annual general meeting

Notice of an annual general meeting must:

…

(e)   include a form of motion for the election of the executive committee, and

(f)   include a form of motion to decide the number of members of the executive committee, and

…

36. That is, every AGM must include that motion to decide the number of members of the executive committee.

37. In those circumstances, there must first be a motion to decide the number of members of the executive committee. Once that is decided, then assuming the number of members was decided to be 2, if two persons are nominated for the executive committee, the usual and acceptable practice would be to simply announce those two nominated persons as comprising the executive committee. If more than two persons are nominated and there is no resolution to increase the size of the executive committee, then a ballot would be required to select the preferred two members.

38. In this case, as finally formulated in the orders sought, the dispute is not in relation to a denial of the appellant’s right to vote (which would require an application pursuant to s 154 of the SSM Act) or the outcome of the election being in same way flawed, but with the appellant’s right to nominate herself.

39. I accept the appellant’s submission, and indeed cannot understand how it could be otherwise, that the failure to comply with Clause 2(6) of Schedule 3 of the SSM Act adversely affected the appellant. The appellant was denied a right she possessed according to the SSM Act and that must be an adverse effect.

40. Therefore, the appellant has demonstrated that the Adjudicator may not refuse to invalidate the order sought pursuant to s 153(1) because such a refusal requires the Adjudicator to consider that the person affected, in this case the appellant, has not been adversely affected. As s 153(2) states that such a refusal depends on the Adjudicator considering whether a person has not been adversely affected and that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution or have affected the result of the election, if either of those requirements are not met then the order must be made.

41. In that respect, I find that the Adjudicator in this case fell into error in finding that:

I accept the Owners Corporation’s submission that the failure to comply with the provisions of this Act did not adversely affect any person

42. However, for the sake of completeness, in order to determine whether the Adjudicator could have exercised his discretion to refuse to make the order sought, I also determine whether the failure to comply with the SSM Act as just described would not have effected either or both the result of a resolution to determine the number of members on the executive committee, or the outcome of any election required to select the members of the executive committee.

43. The appellant has submitted there is no evidence in relation to the possible outcome of any such resolution or to the possible outcome of any such election. In the absence of that evidence, it is submitted, it is not possible to make the necessary determination.

44. The respondent’s representatives submit that there is evidence both that the appellant would not have been, and was not, nominated for the executive committee and would not have been elected to the executive committee.

45. Before considering the respondent’s evidence and submissions, it will be helpful to set out some of the facts in relation to the AGM of 25 June 2014. I note the appellant disputes the minutes of that meeting in some respects, but the facts I set out below are, I think, not in dispute.

46. Five persons were present in person: the appellant, Ms Freeder, Mr or Ms Acevedo, Ms Romeo and Ms Tchou. Present by proxy (held by the appellant) was G. Hunt. The meeting was chaired by Ms Taouk.

47. The appellant does take issue with the minutes in relation to Motion 5, to the effect that it was “resolved” there be 2 members on the executive committee, and that the persons nominated and “elected” were Ms Freeder and Ms Tchou.

48. The Notice of the 2014 AGM, dated 13 June 2014, is in my respectful opinion rather garbled and difficult to understand in relation to Motion 5. The Notice states as follows:

“Motion 5:   THAT the executive committee be nominated and elected to the Executive Committee.

THAT the elected executive, elect a Representative and a Substitute Representative who are to be the nominate contact person(s) with the Strata Managing Agent.”

49. However that is read, it is difficult to see in plain terms that it includes a motion that the executive committee consist of two members. The second paragraph in particular is difficult to follow.

50. In any case, the respondent asserts that for many years, or at least since 2008, the executive committee has consisted of 2 members and that this was understood by all owners in the scheme.

51. The appellant herself has provided a document in her “white bundle” at page 36, purporting to be a letter from the owners of units 2, 4 and 5, to Ms Taouk, in response to a letter from Chamos Legal dated 18 July 2014. The letter from the owners of units 2, 4 and 5 is undated. The letter states inter alia that

“As was indicated in the AGM meeting in 2013 the protocol has also always been observed at 23 “ ” Street is the nomination of two members only for the Executive Committee.”

52. Before considering that letter further, it is important to note that the appellant submits that the signature of “S. Romeo” on that letter is a forgery. The appellant had provided at page 37 of her white bundle a copy of an email from Silvana Romeo dated 8 August 2014, apparently in response to an email from the appellant addressed to all or most of the other owners or residents, setting out some of the appellant’s issues with regard to the scheme. The appellant’s email refers to a dispute in relation to the number of members of the executive committee. It refers to Ms Romeo being on the executive committee for the 2012/2013 year. In response, Ms Romeo states in her email:

“Dear Pamela,

I was not on the committee in 2012 – 2013 and someone has forged my signature on one of those documents. This is a criminal act and I will be notifying my solicitor about this.”

53. It is not clear which “one of those documents” is being referred to and whether any further action was taken in regard to the allegation of forgery. If the appellant intended to rely on that issue it would have been prudent to obtain a statement from Ms Romeo. As it stands, it has the tendency to refute the appellant’s claim that there were 3 members on the executive committee in that year.

54. I find that the appellant has not proved that on occasions more than two people have been elected to the executive committee. I therefore find that had a motion to restrict the number of executive committee members to two been placed on the notice paper and properly resolved by a valid vote, then in these circumstances, the meeting having been faced with only two nominations, an election would not have been necessary, only a resolution that the two members were to comprise the executive committee.

55. However, such a motion was not placed on the notice paper and such a resolution was not passed. I therefore find that the appointment of two persons to the executive committee was invalid.

56. That finding does not mean that had the provisions of the SSM Act been complied with the result of any election would have been different. In my opinion, it is probable the result would not have been different, but that is not a finding I can make on the evidence available. In any case, in fact, the appointments to the executive committee were invalid anyway.

57. For the reasons above, I order that the election of the executive committee of Owners Corporation SP 7348 held at the Annual General Meeting on 25 June 2014 was invalid as a result of breaches of the SSM Act.

58. I turn now to Order 3 sought by the appellant, that a general meeting be held of Owners Corporation SP 7348 within 7 days for nominations to be called to join the Executive Committee.

59. As I have already found, there was no application before the Adjudicator, and of course there could not have been such an application, that the Extraordinary General Meeting held on 23 March 2015, was invalid. That EGM is not the subject of either adjudication or this appeal, in itself.

60. Therefore, I have evidence before me in the form of a Notice of an Extraordinary General Meeting to be held on 23 March 2015, and the Minutes of that meeting. I have no reason not to accept those documents as valid, and of any resolutions and other business of that EGM as valid, until some person should bring a successful application for an Adjudicator’s order to the contrary.

61. For the sake of completeness, I will refer briefly to the appellant’s submissions in relation to that meeting, which appear to centre on two issues:

1. The executive committee which called the meeting was “defective”; and

2. The meeting was called on a date when it should have been and was known the appellant was not available.

62. At the date of that meeting, there was no order or finding that the executive committee was “defective”, indeed the Adjudicator had dismissed that application.

63. In any case, an Owners Corporation is not under a duty to only call a meeting for a date when it can confirm all relevant persons can attend. The proxy system exists for that reason, among others.

64. Obviously, I have not fully considered this issue, because I have found I do now have the power to consider whether that meeting or any resolutions passed at it were invalid.

65. The result of that reasoning is that on the evidence available to me, even though the executive committee “election” in June 2014 was invalid, there is no utility in ordering another EGM because the problem has been rectified at the EGM in March 2015.

66. On that basis I decline to make the order sought.

Geoffrey Meadows

Senior Member

Civil and Administrative Tribunal of New South Wales

6 May 2015

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 July 2015