Forcing the hard decision

Published: 21 December 2008.

Contributed by Frank Higginson of Hynes Lawyers

One of the main aims of the BCCM Act is to have bodies corporate self govern. This means that owners are encouraged to accept committee positions and take an active involvement in the affairs of their scheme.

To encourage this, the Act makes it clear that there are no training or other educational requirements to step up to a committee position. It also makes the chances of committee members being held personally liable for decisions, or non decisions, remote.

What this means is that sometimes those elected to committee positions would not be fit to govern their own household, let alone take an active role in management decisions in relation to a building, that at its very least, would involve interests of several million dollars. Consider a typical high rise tower of 60 units worth an average of $400,000 each. This is $24 million worth of real estate without adding the value of the management rights or the common property.

What we are seeing at the moment is that some committees are refusing to actually make decisions on what could be perceived to be ‘difficult’ matters. Like politicians, some committees seem to be assessing the ‘net’ voting position that a proposition might have, and if it looks like a net vote ‘loser’, they are trying to just ignore the issue.

So what happens if you come across a stonewalling committee?
You can do one of two things:

Wait until you receive an invitation to submit agenda motions from your body corporate
manager for your next AGM and submit your motion. If this occurs, the motion must go on
the agenda.
Requisition an EGM. This means you need 25% of lot owners (one of which is you) to
support your motion. Once you have the numbers and the material is delivered to the body
corporate manager, the meeting must be called within two weeks and held within six weeks.
Arguments over these notices can be very technical if not completed correctly.

Either way, you will not have to pay for the costs of the meeting as each alternative is considered
under statutory requirements which do not allow the body corporate to recover the costs of the
meeting from an owner who puts forward a motion.

Our view is that it is always best to work with your committee to the greatest extent possible. However, the commercial reality is that sometimes you need to forge your own path, but you should obtain legal advice.

Reply from: sue ekert

10:01pm Sunday, 21 December 2008

Hello, Good advice, however, if through allowed caretaker assistance or lobbying inefficient committee members keep retaining committee positions and do not fulfil their proper roles of enforcing by-laws or ensuring full performance of contracts, then there is practically nothing that can be done that is simple or affordable.

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