This article discusses committee access to records, outlining the rights of strata committee members to obtain correspondence, documents and meeting information.
Question: What are the strata manager’s and secretary’s obligations to share correspondence and background documents with all committee members?
We sit on an 8-member committee (one seat is vacant). A voting bloc of four members always votes together, and the remaining three are effectively excluded from information. We are not copied into, or given, key correspondence about issues that later come to a vote. For example, an EGM notice was issued without our knowledge that an EGM was proposed.
In another case, an email vote was called on whether to approve a response drafted by the owners corporation’s solicitor to four owners, following a mediation. Despite multiple requests, we have never been provided with copies of the earlier letters that the owners corporation sent after that mediation, so we are being asked to vote without seeing the full background.
What are the legal or procedural requirements for the strata manager or secretary to keep all committee members informed and provide relevant correspondence or background materials, especially when calling a vote or EGM? How do those obligations interact with formal “access to records” requests by committee members?
Answer: Several sections of the Act describe the books and records required to be kept, who is required to keep them, and how parties can gain access to them.
Let’s build up from first principles of books and records in strata, access to the same, and then some additional elements which come into play around committee and strata manager behaviours.
Note: This answer will heavily reference sections of the Strata Schemes Management Act 2015 (the SSMA), i.e. the Act. For simplicity’s sake, any time I reference “the Act”, I am also referring to any relevant sections of the Strata Schemes Management Regulation 2016 (SSMR) if not specifically cited. Mentions of “the Acts” in plural are references to not only the SSMA and the Property Stock and Agents Act 2002 (PSAA), but also to their corresponding Regulations. Additionally, there are some exclusions relating to information considered to be under legal privilege, which are assumed not to apply in the given circumstances.
With that out of the way, several sections of the Act describe the books and records required to be kept, who is required to keep them, and how parties can gain access to them.
Division 1 of Part 10 of the Act, “Strata roll and other records”, goes into detail about the records required to be kept by an owners corporation (OC), including (but not limited to) “correspondence received and sent by the owners corporation”.
Division 2 of the same Part, “Provision of information about strata schemes”, describes how owners, or parties authorised by them, can inspect the records, including any such communications.
Section 43 of the Act specifies that the secretary is responsible for the collation and keeping of certain records for the prescribed period (7 years).
Section 37 of the Act describes the base duties required of members of the committee.
Part 4 of the Act, “Strata managing agents and building managers” describes how strata managers are appointed, when and how they can exercise the functions of the owners corporation and committee (i.e. how they are delegated to those roles and responsibilities), and the duties imposed on them (in addition to the duties imposed on them by the PSAA).
And lastly, in relation to books and records and access to same, section 43(1) of the Property Stock and Agents Regulation 2022 (PSAR) explicitly states “A strata managing agent must permit, on demand made at a reasonable time, a member of the strata committee of an owners corporation […] for which the agent acts as managing agent to inspect the records or books of account of the owners corporation […]”.
In regard to convening meetings, under sections 19(1) and 39(1) of the Act, the secretary (or a strata managing agent delegated authority as secretary) can convene a general meeting or strata committee meeting at any time. Effectively, the secretary can convene a meeting without reference to other committee members or owners. In addition to any required motions (under the Act or from other owners), the secretary can add other items to the agenda at their discretion.
This allowance means that if the secretary decides, on their own initiative or in response to a request from anyone (even if it’s not a qualified request from owners for a general meeting under section 39(4) or a request for a strata committee meeting by at least one third of committee members under section 19(2)), there is no requirement to pre-notify any other owner or committee member of the intention to convene the meeting.
With all that in place, in answering your questions, I will assume the strata managing agent has been appointed under a strata management agency agreement and given the delegated functions of the secretary in relation to the collation and keeping of the OC books and records as required under the Act, and in relation to the convening of meetings.
While some internal correspondence of the strata management company may not fall under the definition of “correspondence received and sent by the owners corporation”, correspondence between the committee (as representatives of the OC) and the strata manager (as agent to the OC) will certainly fall under that definition, and must be made available under the various access provisions of the Acts.
Additionally, under the above provisions of the PSAR, _all _the records required to be kept by the OC or by the strata manager are to be provided upon reasonable request by any committee member, including any correspondence between committee members and the strata manager.
Additionally, all supporting documentation for decisions, such as quotes, reports, etc. must also be made available by the strata manager for inspection by any committee member/s.
I would expect that any material or correspondence in relation to mediation would fall under section 179’s requirements of keeping notice and orders in the books and records, and therefore should be available for inspection by strata committee members.
In addition to all these records access issues, there are legislated requirements on the behaviour of strata committee members and strata managers.
Section 37 of the Act requires “[e]ach member of a strata committee of an owners corporation [must] exercise [their] functions […] with honesty and fairness, and […] with due care and diligence, and […] for the benefit, as far as practicable, of the owners corporation, [and] to comply with this Act and the regulations[…]”.
Under section 57(1) of the Act, the strata managing agent cannot rely on a defence of performing actions under instruction of the OC or the committee if those actions are in breach of the Acts.
That is, the obligations of the OC and the strata committee apply equally to a strata managing agent delegated the functions of the OC or the committee who is acting under instruction of the committee or under their own discretion.
In your specific case, the three “minority” members of your committee can request in writing that a formal committee meeting be held under section 39 of the Act. That meeting must be convened by the secretary to consider the items required by the requesting committee members. Such a meeting might consider the matters already in issue and discussed above.
Additionally, you could seek NCAT orders under section 188 (Order to supply information or documents), section 232 (Orders to settle disputes or rectify complaints), section 238 (Orders relating to strata committee and officers), section 240 (Tribunal may make order of another kind), section 241 (Tribunal may prohibit or direct taking of specific actions), and if the orders are not complied with, you could seek penalties under section 247A (Civil penalties for contravention of orders), and perhaps the compulsory appointment of a strata managing agent under section 237 (Orders for appointment of strata managing agent).
Bear in mind that an agent so appointed may have the decision-making powers of the whole OC and may not need to convene meetings to consider matters usually only decided at meetings.
Information on seeking any such orders (or those under additional sections) is beyond the scope of this answer, and should they feel such action is warranted, committee members or owners should seek legal advice from a strata specialist lawyer on this matter.
That said, any such application for orders from NCAT should describe explicitly which sections have been breached and under which sections orders are being sought.
Sean McNamara
Strata, Meet Data
E: sean@stratameetdata.blog
P: 0414 920 726
This post appears in Strata News #773.
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