At the committee meeting on the 8th December 2021, the motion was passed under “General Business”, titled “Committee nominee with Archers”
That motion was
If Lynne Smith was to give instruction to the Body Corporate manager, but not without formal instruction from the committee. There is an argument that if she were to do such, she would be acting negligently and be in contravention of the code of conduct.
The only way that the committee can make a decision, which is a formal instruction, is under section 57 or 60 and 61 of the BCCM (accommodation module) Regulations 2020,
As will be shown the body corporate manager was instructed to produce the agenda, voting papers and explanatory papers of the 2022 AGM without motions passed by the committee. Because, the “response from committee” sent on the 11th May 2023, , acknowledges that 5 people agreeing to a motion. Such agreement is not a decision of the committee as the process of section 57 or 60 and 61 of the BCCM (accommodation module) Regulations 2020, would not be followed and the rest of the body corporate would be denied an opportunity to be aware of decision before they were made and to have an input to those decisions.
Let’s look at the facts.
Motions passed on General Meeting and Roof Cleaning
From notifications in the future, this minute is not a “full and accurate” minute as defined in section 63.
There is apparently an audio recording that shows 3 quotes were discussed and tabled at the meeting. If there was an agreement who was to do the roof cleaning work it would be on the tape and it raises the possibility that a motion was passed to resolve to use one company or to outline the “due process” of assessing the company to do the work. HOWEVER, that motion is not recorded in the minutes!
The tape is not a part of the body corporate records and has no validity.
The responsibility for this is with the committee, as such all the committee members that authorised this minute at that meeting, as well as those at that meeting who then on the committee meeting of the 28th November 2022, vote that the minutes were a true record, did so in breach of their code of conduct.
The motion that was actually passed was:
Note, the motion only call for a “same issue motion” it did not call which contractors were to be on the motions.
It is also worth noting that the spending on the quotes that were above the spending limit of the committee, and would have required body corporate approval, but if the quote form AAA Goodfellars for $32,010 was discussed at the meeting, that amount was not above the committee’s spend limit (change at the 2018 AGM) and could have been approved at the meeting.
Much of what happened at the committee meeting of the 24th August 2022 was done not in accordance with the Act or Regulations.
Look at motion 10.3, then look at section 72, The committee does not call general meeting it is called by a committee member who the committee authorised. Further look at the date that was called for, the 12th October and the Venue, then realise that the date and venue both changed. It is worth noting that the venue is not compliant with section 82, so the whole AGM could have been challenged as being void.
This motion of committee in 10.1 is possibly compliant with section 83(1), but motion 10.2 looks nothing like the agenda of that was produced. There is also a strong argument that what should have happened was a motion that “instructed the body corporate manager to prepare an agenda with the following items …”, but leave the whole task to the body corporate manager.”
Motion 10.2 just list 3 committee motions, but there were more in the agenda and is not compleant , with section 83(2)(a)(iii) of the regulations, that require:
“the substance of the following motions—
(iii) a motion submitted under section 76 by a member of the body corporate and required to be included on the agenda, other than a motion stated on the agenda as an original motion under a group of same-issue motions;
However, an agenda and voting papers and explanatory schedules create and sent to owners.
Item in the agenda
Any explanatory statement in a general meeting has to comply with requirements of section 80, this statement does not.
A statement of the committee has to be made by the committee, by way of section 57 or section 60. The regulations are clear, under section 57(1),
“This section states how motions are decided at a meeting of the committee.”
or by way of vote outside of committee meeting (VOCM).
This explanatory statement was printed by Archers. The only person that was authorised, by the motion of the 8th December 2021, titled “Committee nominee with Archers”, to instruct the Body Corporate manager what to print, was Lynne Smith, and she could only give such “formal instruction from the committee”.
There was no instruction to print this explanatory statement from the Committee, There were not such motions at the committee meetin of the 24th August 2022 and no VOCM between the committee meeting of 24th August and the AGM agenda and voting papers were distributed.
Archers printed this under instruction from individuals preparing an agenda not the committee
This was confirmed in the response from Archer on the 11th May , that is claimed to be from the “committee” that 5 members of the committee, “authorised” the agenda, voting papers and the explanatory schedule.
However, that clai has been disputed by at least one member that is not currently on the committee.
There are other factors in the agenda, voting papers and explanatory schedules do not comply with the legislation:
There is listed as one explanatory schedule, but section 80(7) is clear that explanatory material given by the committee must be contained in “a schedule of the committee explanation” that is sperate to the from the “explanatory schedule” , also the agenda makes no references any lot owner was sent “scope of works or quotations” with the agenda.
Items in the agenda that are “same – issue motions”
schedule, but section 83 (2)(c)(i) could be argued that, as the section has an example “
The title “Roof Cleaning” may not meet the requirements, and should have been “Motions about Roof Cleaning”
The voting paper
The motion to be voted on, makes references “scope of works or quotations”, but as noted these are not in the agenda, but were “circulated with this meeting notice”.
This is section 78 of the legislation that applies to voting, that is the responsibility of the secretary section 78(1)
And what must be on the voting paper, section 78(4), and the voting papers do not give instruction on electronic voting, that may be elsewhere not it is not on the voting paper and does not indicate that there is an explanatory note available.
The explanatory schedules
Putting aside that the explanatory schedule was not from the committee, For the legislative requirements, Section 80 (2), the submitters name is required for each explanatory statement, that is not provided.
Also, as the motions are a same group motion, Section 80(4), as requirements, which muct ALL be include and are not.
The substance of the explanatory schedule notes:
- the same statement for each section.
- No discussion of the pressure wash company
- The statement “please see before and after photos” with no photos attached”
- The statement
is not a true statement as the approval had not been given by the body corporate and the qualifier “however” if not applicable. This gives the impression that people were not making the decision to approve either of the contractors but to approve the spending.
- It is questioned that if the committee spending limit was $350 per lot for 97 lots that is $33.950, this spend was below the committee spend limit so the motions were not necessary.
These are the results of the voting:
This people attended the November meeting of the committee,
The roof cleaning was mention as an item.
Lot 77 on the 5th February 2023 sent an email to the body corporate manager, the text of which is:
“Lesley, Could you please include the following motion and explanatory notes as an agenda item. Next scheduled Somerset Gardens committee meeting 20th Feb. 2023
Motion –
That the committee :
- Confirm that the soft wash cleaning process as carried out by T&S Maintenance for the pool area roof clean trial, as presented to the AGM along with before and after photos, was identical to that carried out by committee preapproved contractor AAA Goodfellas t/a First Class Cleaners Queensland who actually carried out the work.
- Confirm that due diligence was carried out on the contractor ( refer explanatory note ).
- Confirm that an anti-fungal spray was used by the contractor and if not the likely impact on the time frame before roof’s need to be cleaned again.
- Confirm that roof inspection was done by the committee upon completion of the job, as part of final approval process, and that a warranty is in place.
- Confirm that a roof inspection will now be carried out due to reports of roof tile damage and tile displacement, and further confirm whether rectification costs ( if problems are uncovered ) will be covered by the contractor or a cost to owners.
Explanatory Note
- SOFT WASH – Use of rotating scrubbing brushes may have produced reasonable results, but I doubt that it qualified as soft wash. Intensive scrub may have been just as damaging and possibly even more so than the high pressure wash that everyone was keen to stay away from. If the contractor was using a different process ( ie : other than that agreed to ) they should have been stopped by committee, and told to get it right or bugger off.
- DUE DILIGENCE – Google search AAA Goodfellas t/a First Class Cleaners Qld. – Red Flags.
- ANTI-FUNGAL SPRAY – Information presented was that by anti-fungal being applied as part of the three step approved process, would likely see results lasting for four and possibly five years.
- FINAL INSPECTION – Standard business practice – Review quotes, select the best one, action written confirmation covering scope of work, start and expected completion dates, price, payment terms, and that upon completion, work is subject to inspection with contractor attending to any issues identified, prior to final approval and payment. ( commonly referred to as terms and conditions ).”
These people attended the February committee meeting
The roof cleaning was an item carried over:
It roof cleaning was mentioned in the caretaker report, but not discussed at the meeting.
3.1 Common property tap
3.2 termite inspection
3.3 installation of security cameras
The comment “it was noted that this item is covered under the caretaker’s report is not factually true as it is an “owner’s motion that is not in the caretaker report.
Section 78(6)(a) of the BCCM (accommodation module) regulations says that, for a general meeting, “the voting paper must, for each motion, state (a) the motion in the form in which it was submitted without amendments”
This principal should be applied to section 50 motions.
The motions minuted is NOT was not what was submitted by lot 77, as there is an “explanation” that were not printed, which is relevant to the requirements to minute properly
The issue is that:
- What was put up as the motion from lot 77 may have NOT been the motion submitted and was minuted correctly, or
- What was put up as the motion from lot 77 may have been the motion submitted and was NOT minuted correctly,
The relevant legislation parts are:
Section 63 of the BCCM (accommodation module) regulations
Correct minuting of the motion was not done, as section 63(6)d) applies to motion submitted under section 50and requires that it is minuted when the motion was submitted to the secretary, which was the 5th February 2023, that is not in the minutes.
That is relevant, as section 50(2) (a) (below) indicates that committee must decide the motion with in the 6 week period that it was submitted. So the resolution to issus is if voting on the motion is “deciding” or the secretary taking the action that was resolved,
The secretary did not “provide a formal response to the owner of lot 77 withint he decision making period of 6 weeks”, which would have been from the 5th February 2023 would have been the 20th March 2023.
The actions required of the committee if an owner submits a motion are in Section 50 of the BCCM (accommodation module) regulations
I assert that what was asked for the committee to do, is not a function of the body corporate under section 94 Act , nor a function of the committee of the body corporate acting for the body corporate under section 100 of the BCCM Act, to “confirm” events.
Lot 77 sent an email to body corporate manager on 16th April 2023, that I assert was again not a motion that was a function of the committee or body corporate.
However, a response came from the body corporate manager, on 11th May.
Procedurally the response from the body corporate manager has issues.
- The committee can only make a at a meeting, under section 57(1) or by way of vote outside of committee meeting (VOCM), that require steps to be done under section 60(1). There was no motion at the meeting of the 20th February 2023 to respond to a letter date the 17th April 2023 and there was no notice to non-voting member sof the committee or lot owners of a section 60 VOCM, to do so. Thus,
- the Body Corporate Manger had no authority to write to the owner of lot 77
- the response was not a “response from the committee” as purported.
The only person who can correspond with the body corporate manager is the Lynne Smith, by virtue of the motion on the 8th December 202, to send the letter to lot 77.