This question was inadvertently raised, and answered in the recent case of Gill v The Owners – Strata Plan No. 17913 [2024] NSWCATAP 37. The decision also provided some guidance on applications to remove a strata committee member.
In the case, Ms Gill, seemingly disagreed with the appointment of another lot owner who was an elected strata committee member (in fact he was the chairperson) as the part time building manager. Ms Gill sought orders seeking to have the chairperson/building manager removed as the building manager alleging he had been invalidly appointed under s24 of the Strata Schemes Management Act 2015, removed under s238 of the Act as a strata committee member alleging there was a conflict of interest and an abuse of power by the chairperson/building manager. Examples were provided including that the chairperson/building manager had advised Ms Gill that it was not his duty to investigate by-law breaches, he had “arbitrarily” advised her not to contact him, he had failed to repair a fire door, he had failed to attend Ms Gill’s lot when water perpetration was occurring and that he had authorised a plumber to attend her lot (and no other lot) to consider noise issues with the plumbing. Ms Gill also sought orders under s232 of the Act to have owners and occupiers affix notices to the lift “during noisy cosmetic repairs” and for an SMS notification system her agent had proposed to be implemented. The SMS proposal would require an SMS to be sent to owners and occupants to notify them of building works and noise and to provide an incentive to those contravening the noise and smoking by-laws to stop doing so.
The appeal was dismissed on the basis that:
- section 24 of the Act did not prevent the building manager being elected to the strata committee. The chairperson/building manager was also a lot owner and as such they were eligible to be elected to the strata committee.
- there was no evidence of a conflict of interest or an abuse of power by the chairperson/building manager and in fact, in relation to some of the building management complaints, the management duties did not extend to require the building manager/chairperson to undertake the tasks the appellant complained they had failed to undertake. The scheme was well run, the appellant’s agent had provided evidence to this effect, the chairperson/building manager had left the meeting when their building management contract had been discussed by lot owners and, in addition the strata committee had oversight of the chairperson in his role as the building manager. It is noted that the chairperson/building manager had argued that his role as the chairperson was limited in nature.
- the SMS proposal had not been pursued at the initial hearing and so could not be the subject of the appeal. Further, there was no evidence that the SMS proposal had ever been put to a vote at a general meeting, nor was there evidence the strata committee had voted on it. As such, there was no dispute to be determined by the Tribunal as there was no decision to challenge. Even if it had been put to the strata committee the Tribunal noted that the strata committee did not have to accept the proposal just because it had been put forward by a lot owner and that was entitled to determine what should be done and to make decisions exercising its own judgement.
- the strata committee had in fact been placing notices in the lift raising issues concerning noise and smoking. The strata committee had taken the view that excessive notices were likely to have less impact on lot owners and was unlikely to be an effective means of managing the noise issues.
This is general information and should not be considered to be legal advice. You should obtain legal advice specific to your individual situation.
Author: Allison Benson