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Voting Patterns of Committee Members on motions related to right to use area as exclusive

Legislative authority

  1. Section 101B of the Body Corporate and Community Management Act 1997, reads:
  2. The code of conduct in schedule 1A applies to each person (a committee voting member) who is—

(a)     a committee member for a community titles scheme; and

(b)     a voting member of the committee under the regulation module applying to the scheme.

(2) On becoming a committee voting member, the person is taken to have agreed to comply with the code of conduct.

(3) If a committee voting member breaches the code of conduct, the member may be removed from office in the way prescribed under a regulation

  • Point 4 of Schedule 1A Code of conduct for committee voting members to the Body Corporate and Community Management Act 1997, states

“A committee voting member must take reasonable steps to ensure the member complies with this Act, including this code, in performing the member’s duties as a committee voting member.’

  • Section 101(2) of the Body Corporate and Community Management Act 1997, states

“the committee must put into effect the lawful decisions of the body corporate.

History of decisions at Somerset Gardens at where member(s) of the committee has breached a stated provision of the code of conduct

  1. At the Annual General Meeting of Somerset Gardens CTS 25221, held on the 24th October 2018, item 13 was passed 31 votes to 13 and item 13 resolved that:

“The Body Corporate to take the steps including:

“the committee must put into effect the lawful decisions of the body corporate.”

  1. Retain a surveyor to properly identify on the new exclusive use plans the area being occurred by owners
  2. Engage a lawyer to draft a motion (resolution without dissent) to be considered at the next AGM to alter the exclusive use allocation in accordance with the plans prepare by the surveyor.”

Motion 11 That the major spending limit for the scheme be $350 per lot $33,950

Motion 12 relevant spend limit of the committee “for the sole and specific purpose of renewing the insurance policy to $33,623.70”

  • The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 24th October 2018 show the following people were elected as voting members, 
    • Ora Whaanga (Chair Person)
    • Sara Butcher (Secretary)
    • Lynne Smith (treasurer) 
    • Tanya Lund
    • Lisa Ross
    • Barbara Spooner
    • Jennifer Stratford
  • The minutes of the committee meeting on 15th November  2018 the following voting committee members were present at the meeting:
    • Ora Whaanga (Chair Person)
    • Sara Butcher (Secretary)
    •  Lynne Smith (treasurer) 
    • Lisa Ross
    • Barbara Spooner
    • Jennifer Stratford

Tanya Lund attended by proxy to Lisa Ross

1.2 Breach of By-Laws have been monitored by the caretaker and whenever possible any breaches shave been pointed out to the person breach. At request of the previous committee these have been sent to the body corporate representative in an email on a weekly basis with evidence where appropriate.

The motion resolved was nil further action

1.12.11

The motion resolved was that the committee resolves day to day item such as minor renovations, minor variations to common property, pet application and breach letter dealt with on a daily basis via email agreement and not wait for a forma VOCM. Only legal requirements will be presented via VOCM or wait until the next committee meeting for agreement and will be organised via the strata manager

Fencing and Exclusive use By-Laws

“during the audit it was found that the occupation of common property by a majority of owners is not consistent with the exclusive use in the CMS.

the committee understands …many owners are using common property as exclusive use areas and have erected (under past committee’s approval) items such as decks”

“A motion was passed at the General Meeting”

The resolution passed that the organises for two quotations from suitably qualified surveyors present to the committee[1]

The resolution passed that the start manager send a letter with draft by-laws to all owner who voted “no” at the AGM that they can have inut to the changes of these by-laws”

The following members resigned from the committee

  1. Ora Whaanga (Chair Person) lot 21
  2. Sara Butcher (Secretary) lot 42
  3. Lynne Smith (treasurer) lot 44
  4. Lisa Ross lot 37
  5. Barbara Spooner lot 51
  • The minutes of the committee meeting on 11th March 2019, show the following voting committee members were present at the meeting:
    • Shane Brett (Chair Person)
    • Madge Brown (treasurer) 
    • Sarah Brown
    • Jenny James
    • Tanya Lund
    • Jennifer Stratford

Fencing and Exclusive use areas

“having obtained quotes[2], the committee delay Motion 1.26  ‘fencing and exclusive use areas …until allocation of funds is  consider in the 2019-2020 budget meeting”[3]

  • The minutes of the committee meeting on 16th May 2019, show the following voting committee members were present at the meeting:
    • Sarah Brown (Chair Person)
    • Shane Brett (secretary)
    • Madge Brown (treasurer) 
    • Jenny James
    • Tanya Lund
    • Jennifer Stratford
  • The minutes of the committee meeting on 15th August 2019, show the following voting committee members were present at the meeting:
    • Sarah Brown (Chair Person) proxy to Jacqui Kerr
    • Leigh Moana (secretary)
    • Madge Brown (treasurer)  proxy to Jenni James
    • Jenny James
    • Jacqui Kerr
    • Jennifer Stratford

Minor breaches of by-laws have been sent to the secretary on a regular basis as agreed,. Those residents have been contacted via email and/or phone to ratify the breach

No resolution passed

Engagement of surveyor

Previous discussion regarding exclusive use areas and encroachment on to common property and engagement of a surveyor and it is believed that this should be included in the by-law amendments

Resolved that a surveyor not be engaged and no provision for a surveyor include in this years budget[4]

  • The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 10th October 2019 show the following people were elected as voting members, 
    • Jacqui Kerr(Chair Person) 
    • Leigh Moana (secretary)
    • Lynne Smith  (treasurer)  
    • Shane Brett
    • Garry Fox

Motion 10 relevant spend limit of the committee “for the sole and specific purpose of renewing the insurance policy to $39,008.23”

  • The minutes of the committee meeting on 20th January  2020, show the following voting committee members were present at the meeting:
    • Jacqui Kerr(Chair Person) 
    • Leigh Moana (secretary) 
    • Lynne Smith  (treasurer)  
    • Shane Brett
    • Garry Fox

Resolved that the building manager seek quotations for garden works based on the vegetation management plan

Strata manager to send a continuing contravention notice to the lot owner 21 and if not resolved to make application to the commissioner office for conciliation

  • The minutes of the committee meeting on 6th May   2020, show the following voting committee members were present at the meeting:
    • Jacqui Kerr (Chair Person)  proxy to Leigh Moana
    • Leigh Moana (secretary)
    • Lynne Smith  (treasurer)  
    • Garry Fox

Jacqui Kerr resigned and was replaced by Leigh Moana

Leigh Moana resigned as secretary and Sara Brown appointed (this is in error)

  • Shane Brett resigned and was replaced by Ora Whaanga

Currently not the funds to implement the complete plan.

Resolved that the trees behind units 69 and 70 be trimmed and the height reduced

Alteration to exterior unit 21 

Strata manager to send a continuing contravention notice to the lot owner 21 and if not resolved to make application to the commissioner office for conciliation.

  1. The minutes of the committee meeting on August  2020
  1. The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 14th October 2020 show the following people were elected as voting members, 
    1. John Wurth (Chair Person)
    1. Ora Whaanga (Secretary)
    1. Lynne Smith (treasurer) 
    1. Margaret Day
    1. Garry Fox
    1. Joshua Punch
    1. Barbara Spooner

Motion 8 relevant spend limit of the committee “for the sole and specific purpose of renewing the insurance policy to $44,832.26”

  1. The minutes of the committee meeting on 3 December 2020
  1. John Wurth (Chair Person)
  2. Ora Whaanga (Secretary)
  3. Lynne Smith (treasurer) 
  4. Margaret Day
  5. Garry Fox
  6. Joshua Punch
  7. Barbara Spooner

Motion re Les Blackstock – a non voting member is a member

Action Pango not attend unless directed

Reduce spend limit of caretaker

Quote approval not in accordance with section 60

Motion 13 AGM one pers voted against owner acting – lot 42

News letter

Formal complaint re caretaker

  • The minutes of the committee meeting on 10th  Feb  2021 (not attended by Violet – not asked)
  1. John Wurth (Chair Person)
  2. Ora Whaanga (Secretary)
  3. Lynne Smith (treasurer) 
  4. Margaret Day
  5. Garry Fox
  6. Joshua Punch
  7. Barbara Spooner

Resolved to issue a remedial notice if not action by 12th Feb 2021

Application to extend council approval John Wirth to follow with council

Relace trees but in front of lots 21 and 27 and remedial action notice

Contravention notice to lot 20

  • The minutes of the committee meeting on 12th May 2021 (Michelle went)
  1. John Wurth (Chair Person)
  2. Ora Whaanga (Secretary)
  3. Lynne Smith (treasurer) 
  4. Margaret Day
  5. Garry Fox
  6. Joshua Punch
  7. Barbara Spooner

Let the plan expire and “prepare a maintenance  plan using some parts of the VMO not completed and discarding other which are no longer relevant

Special consultant to assess agreement 50% cost by caretaker

Lot 20 continuing contravention form 10 notice

Asset register body corporate manager to check

  • The minutes of the committee meeting on 25th August  2021
  1. John Wurth (Chair Person)
  2. Ora Whaanga (Secretary)
  3. Lynne Smith (treasurer) 
  4. Margaret Day
  5. Garry Fox
  6. Joshua Punch
  7. Barbara Spooner

Remove vegetation management plan with garden maintenance

Change green waste fee from $66 to 72 cents per kiloometer (not a requirement of caretaker agreement)

Fencing standard (this should be body corporate issue)

Motion that “when complete, inspected by committee and caretkar, signed off by committee”

Lot 20 final notice

Resolved to include the above motion on the annual general meeting agenda

Election of ordinary required as  Sandra Ferguson  nominated

  • The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 13th October 2021 show the following people were elected as voting members, 
    • John Wurth (Chair Person)
    • Ora Whaanga (Secretary)
    • Lynne Smith (treasurer) 
  • Margaret Day
  • Garry Fox
  • Joshua Punch
  • Sandra Ferguson
  • The minutes of the committee meeting on 8th December 2021 ,
  1. John Wurth (Chair Person)
    1. Ora Whaanga (Secretary)
    1. Lynne Smith (treasurer) 
  2. Margaret Day
  3. Garry Fox
  4. Joshua Punch
  5. Sandra Ferguson

Chair wanted to record and treasured objected (not lot of problems with minutes in next meeting motion to record)

Gardening plan “some bed with the owners preferred to maintain themselves”

V and R repainted – past discussion that R nd V not reflect on DA applciaiton.

The body corporate mamager aevised the meeting that in orde for an email vote to be confirmed by the chairman, if was iport that coting should ensure all other committeemember are copied in on their vote, The chairman must declare at a schedule committee memeting wheterh an email vote is confirmed on not and cannot do so unless be has written evicen that a majority voted with for of against he motion.

Lynne Smith as committee nominee to BCM

Change green waste fee from $40  

42 request to replace screen

  • The minutes of the committee meeting on 24th January  2022
  1. John Wurth (Chair Person)
    1. Ora Whaanga (Secretary)
    1. Lynne Smith (treasurer) 
  2. Margaret Day
  3. Garry Fox
  4. Joshua Punch
  5. Sandra Ferguson

Dispute on minutes

Fee taken away on 24th August put back

Garden plan circulated

Ora taking over unapproved

Motion to introduce by-law at next general meeting

Pavers 36 now did it fail if 3 vote yes a vote no and nil abstentions

Committee correspondence will need to be approved by all committee members.

  • The minutes of the committee meeting on 11th May  2022
    • John Wurth (Chair Person)
    • Ora Whaanga (Secretary)
    • Lynne Smith (treasurer) 
  • Margaret Day
  • Garry Fox
  • Danilee Jones
  • Sandra Ferguson

Motion 3.11 conflict of interest as Ora has an unapproved structure

3.11 Alterations and improvements
Ora Whaanga has obtained information from Gold Coast City Council on this matter and advised it could prove an expensive exercise obtaining information from Council and/or other sources as to which structures meet/require Council approval. It was stated that if these structures meet Australia Standards in retrospect, they could be approved so it is legal. Ora will work with Michelle to create a list of unapproved alterations so the Committee can decide what further action to take.
ACTION: Ora Whaanga 

Approvals

Miscellaneous approvals

  • The minutes of the committee meeting on 24th August 2022, 
  1. John Wurth (Chair Person)
    1. Ora Whaanga (Secretary)
    1. Lynne Smith (treasurer) 
  2. Margaret Day
  3. Garry Fox
  4. Danilee Jones

Sandra Ferguson

Ora taking over unapproved

“there are unapproved structure installed on the shceme ladn and the committee wil discuss the matter further

  1. Minuntes showed  the committee resolved that “the committee call and convene the AGM for 10:30am, 12th October  2022 at Kings College”
  2. The notice for the Body Corporate of Somerset Gardens CTS 2522 was that the meeting would occur on the 16th October 2022 at the office of Archers (BCM) Gold Coast in Southport.
  3. No notice of motion or minuted of the motions complying with section 76 calling the general meeting, were given to lot owners and no confirmation of the motion was in the 28th November 2022 committee meeting.
  4. At the Body Corporate Committee meeting held on the 24th August 2022 Ora Whaanga (Secretary), 
    1. Did not present correspondence to the committee meeting from Ora Whaanga, Lynne Smith (treasurer) and Danelle Jones requesting motions be submitted to  the next body corporate meeting 
    1. Did not comply with section 93(1) of the regulations in the preparation of  the agenda for the body corporate meeting with motions submitted Ora Whaanga, Lynne Smith (treasurer) and Danelle Jones
  5. Between the  24th August 2022 and the 26th October 2022, Ora Whaanga (Secretary)
    1. failed to not comply with conflict of interest requirements, as required under section 58 of the regulations, with regard her actions motion she had presented to the body corporate that were not presented to the meeting of the 24th August 2022.
    1. made a decision to call the general meeting that was not made under authority of a resolution of the committee, section 72 of the regulations, on a date that was  different to that was decided by resolution in the 24th August 2022 committee meeting.
    1. made a decision that was not the decision of the committee and was unreasonable in terms of section 110(5) of the BCCM Act to allow the publication of  potentially defamatory material related to motions 11 to 20 with the Agenda, of the Annual General Meeting of Somerset Gardens CTS 25221
  1. The minutes of the Annual General Meeting of Somerset Gardens CTS 25221, held on the 26th October 2022 show the following people were elected as voting members, 
    1. Sandra Pergason (Chair Person) lot 39
    1. Ora Whaanga (Secretary) lot 21
    1. Lynne Smith (treasurer)  lot 44
    1. Daniel Jones lot 32
    1. Margaret Day lot 37
    1. Brian Arnold lot 55
    1. Angeal Bertand lot 13
  1. The minutes of the committee meeting of the  28th November 2022, 

The following people attended

  1. Sandra Pergason (Chair Person) lot 39
    1. Ora Whaanga (Secretary) lot 21
    1. Lynne Smith (treasurer)  lot 44
    1. Daniel Jones lot 32
    1. Margaret Day lot 37
    1. Brian Arnold lot 55
    1. Angeal Bertand lot 13

Alterations and improvement

The secretary explained that mail correspondence has been sent to the caretaker and a responds is awaiting in relation to the matter.

Showed the committee  received a dispute notice from Mr John Wurth on the 10th November 2022.

Mr Wurth has indicated that this was concerning motions 11-20 in the Body Corporate of Somerset Gardens CTS 2522 and was incorrectly identified in the minutes (a copy is attached)

  1. The minutes of the committee meeting of the  28th November 2022 stated that “the committee had considered the correspondence and written to John Wurth acknowledging the receipt of the correspondence and confirming that no further action will be taken”, 
  2. The minutes of the committee meeting of the  28th November 2022 show no motion reflecting the above resolution of the committee decided by a vote at the 28th November 2022 
  3. The minutes of the committee meeting of the  28th November 2022 so no motions passed by way of a vote outside of committee meeting that were confirmed at the 28th November 2022 committee meeting.
  4.  ? taken off the Feb 2023
  • The minutes of the committee meeting of the  20th February  2023 

Summary

The role of the body corporate manager , then Body Corporate Service in 2018 and  Archers in 2022 have significant responsibility in the non compliance of the voting body corporate members with the BCCM Regulations, due the standard in the code of contact for the body corporate manager being high in there knowledge of the BCCM Act and Regulations.

The following people are people are responsible for motion 13 of the 2018 AGM not being implemented, people stuck through have left the body corporate.

At the 15th November 2018 committee meeting

  1. Ora Whaanga (Chair Person) lot 21
  2. Sara Butcher (Secretary) lot 42
  3. Lynne Smith (treasurer)  lot 44
  4. Tanya Lund lot 73
  5. Lisa Ross lot 37
  6. Barbara Spooner lot 51
  7. Jennifer Stratford lot 41

Michelle Gabriel of Body Corporate Service as strata manager (Body Corporate Manager)

The resignation of the following contributed as these people were elected to the committee but resigned within 4 months

  1. Ora Whaanga (Chair Person) lot 21
  2. Sara Butcher (Secretary) lot 42
  3. Lynne Smith (treasurer) lot 44
  4. Lisa Ross lot 37
  5. Barbara Spooner lot 51

At the 11th March 2019 committee meeting

  1. Shane Brett lot 4
  2. Madge Brown (treasurer) 
  3. Sarah Brown lot 77
  4. Jenny James lot 15
  5. Tanya Lund lot 73
  6. Jennifer Stratford lot 41

Jason Tripplett of Body Corporate Service as strata manager (Body Corporate Manager)

At the 16th May 2019 committee meeting

  1. Sarah Brown (Chair Person) lot77
  2. Shane Brett (secretary) lot 4
  3. Madge Brown (treasurer)  lot 76
  4. Jenny James lot 15
  5. Tanya Lund lot 73
  6. Jennifer Stratford lot 41

At the 15th August 2019 committee meeting

  1. Sarah Brown (Chair Person) proxy to Jacqui Kerr
  2. Leigh Moana (secretary) (lot 69)
  3. Madge Brown (treasurer)  proxy to Jenni James
  4. Jenny James lot 15
  5. Jacqui Kerr lot 27
  6. Jennifer Stratford lot 41

The above people have not actioned contravention of by-laws in accordance with the BCCM (Accommodation module) regulations.

Ora Whaanga has a long history of blatant actions that breached a stated provision of the code of conduct and actions that show spite an ill will. She has had years to meet the requirements of the code of conduct and has been on committees in 2018 that gave undertaking to act in accordance with the regulations. 

Lynne Smith has a long history of actions that breached a stated provision of the code of conduct. These actions may not blatant. The evidence that she acted with spite an ill will is only circumstantial, but disclosure of emails between Ora Whaanga and Lynne Smith may support such assertions. She has been on committees in 2018 that gave undertaking to act in accordance with the regulations. 

A section 37 notice should be issued to

  1. Ora Whaanga lot 21
  2. Lynne Smith lot 44
  • Sara Butcher lot 42
  • Tanya Lund lot 73
  • Barbara Spooner lot 51
  • Jennifer Stratford lot 41
  • Jenny James lot 15
  • Leigh Moana  lot 69

It is understood that under section 37(2)(a) an ordinary motion of the body corporate has to pass to assert that “body corporate believes the member has breached a stated provision of the code of conduct”, as part of the  decision to give the member a written notice under 37(2).

If the facts assert that the member has breached a stated provision of the code of conduct and details sufficient to identify the breach  a notice should be given

The process that follows is that on the agenda of the next general meeting the body corporate must include a motion to remove the member from office with the notice given to the member attached.

The relevance is that at the next general meeting, if the member is not on the committee, there are two consequences:

  1. Under section 88(1)(a)(ii) the motion would be unenforceable and should be ruled out of order by the chairperson.If the member present and entitled voted to reverse the ruling of the chairperson under section 88(3) disagreeing with the ruling section, the motion  under section 94(2) of the BCCM Act,  it would be contrary of the requirement of the act that the body corporate must act reasonably in anything it does, and the body corporate should vote against the motion.

However, the process is useful for transparency to the body corporate to enable it to judge the future possible performance on the past performance of any committee member.

The situation could exist that a committee member who had in the past breached a stated provision of the code of conduct and details sufficient to identify the breach, was not on the committee when the notice or motion to remove the member from office is considered, but after the motion is considered, even at the same meeting, could seek election to the committee.

The existence of the motion would give valuable information to the body corporate on facts how to vote. The natural justice of an person alleged to have breached a stated provision of the code of conduct and details sufficient to identify the breach, is they can, at the body corporates expense, give a written response to the body corporate members about the breached a stated provision of the code. Such a response could reasonably be:

  1. Yes, I breach the code
  2. It was because I was ill advised by the body corporate manager
  3. I have done training since that time.
  4. In the same circumstances now I would act differently and abide by the code.

[1] This motion is not consistent with motion 13 at the AGM, the motions neglects the legal appointment

[2] The mentioned quotes were not discussed, or tabled I the minutes, compared to engineering report provided by Solutions Engineering that, the minutes report “owners are welcome to see the report on the Community Hub portal”

[3] This motion is not consistent with motion 13 at the AGM, the motions neglects the legal appointment

[4] This motion is not consistent with motion 13 at the AGM,