Strata Schemes Management Act 2015 No 50
Current version for 1 July 2020 to date (accessed 10 July 2020 at 08:03)
Part 2
Part 2 Managing body for strata schemes—owners corporation
Division 1 Constitution of owners corporation
8   Constitution of owners corporation
(1)  The owners of the lots from time to time in a strata scheme constitute a body corporate under the name “The Owners—Strata Plan No X” (X being the registered number of the strata plan to which that strata scheme relates).
(2)  An owners corporation is declared to be an excluded matter for the purposes of section 5F of the Corporations Act 2001 of the Commonwealth in relation to the whole of the Corporations legislation.
Note.
 This subsection ensures that neither the Corporations Act 2001 of the Commonwealth nor Part 3 of the Australian Securities and Investments Commission Act 2001 of the Commonwealth will apply in relation to an owners corporation. Section 5F of the Corporations Act 2001 of the Commonwealth provides that if a State law declares a matter to be an excluded matter in relation to those Acts, then the provisions of those Acts will not apply in relation to that matter in the State concerned.
Division 2 Management of strata schemes
9   Owners corporation responsible for management of strata scheme
(1)  The owners corporation for a strata scheme has the principal responsibility for the management of the scheme.
(2)  The owners corporation has, for the benefit of the owners of lots in the strata scheme—
(a)  the management and control of the use of the common property of the strata scheme, and
(b)  the administration of the strata scheme.
(3)  The owners corporation has responsibility for the following—
(a)  managing the finances of the strata scheme (see Part 5),
(b)  keeping accounts and records for the strata scheme (see Parts 5 and 10),
(c)  maintaining and repairing the common property of the strata scheme (see Part 6),
(d)  taking out insurance for the strata scheme (see Part 9).
10   Functions of owners corporation generally
(1)  An owners corporation has such other functions as may be conferred or imposed on it by or under this or any other Act.
(2)  An owners corporation must not delegate any of its functions to a person unless the delegation is specifically authorised by this Act.
11   Other management bodies and persons who assist the owners corporation
The owners corporation for a strata scheme may be assisted in the carrying out of its management functions under this Act by any one or more of the following—
(a)  the strata committee of the owners corporation established in accordance with this Act,
(b)  a strata managing agent for the scheme appointed in accordance with Part 4,
(c)  a building manager for the scheme appointed in accordance with Part 4.
12   Owners corporation may employ persons to assist in exercise of functions
(1)  The owners corporation for a strata scheme may employ such persons as it thinks fit to assist it in the exercise of any of its functions.
(2)  The owners corporation must ensure that any person employed to assist it in the exercise of a function has the qualifications (if any) required by this Act or any other law for the exercise of that function.
13   Functions that may only be delegated to member of strata committee or strata managing agent
(1)  The following functions of an owners corporation, strata committee or officer of an owners corporation may be delegated to or conferred only on a member of the strata committee or a strata managing agent—
(a)  the preparation of estimates for the purposes of section 79,
(b)  the levying of contributions,
(c)  the receiving of, acknowledging of, banking of or accounting for money paid to the owners corporation,
(d)  having custody of any money paid to the owners corporation or making payments from any such money,
(e)  the taking out of insurance required or permitted by this Act,
(f)  the conduct of meetings of the owners corporation and handling of correspondence,
(g)  the maintenance of records required to be kept under this Act,
(h)  such other functions as may be prescribed by the regulations.
(2)  This section is subject to sections 56 and 101.
Note.
 Section 101 enables some of these functions to be exercised by certain other specified persons.
Division 3 Meetings of owners corporation
14   First AGM must be held within 2 months after initial period
(1)  The original owner or, in the case of a leasehold strata scheme for which there is no original owner, the lessor of the leasehold strata scheme must convene and hold a meeting of the owners corporation, in accordance with this Act and the regulations, not later than 2 months after the end of the initial period.
Maximum penalty—10 penalty units.
(2)  An original owner or lessor who fails to comply with this section remains liable to the penalty for that contravention even if the Tribunal makes an order under this Division or a meeting is convened and held in accordance with the order or otherwise.
(3)  An original owner or lessor required to convene the first annual general meeting of an owners corporation must give at least 14 days notice of the first annual general meeting to—
(a)  each other owner and each first mortgagee and covenant chargee shown on the strata roll, and
(b)  each tenant of a lot in the strata scheme whose name has been notified under a tenancy notice as a tenant of the lot to the owners corporation in accordance with this Act.
15   Agenda for first AGM
The agenda for the first annual general meeting of an owners corporation must include the following items and may include other items—
(a)  to decide whether the amount of a contribution required to be made to the administrative fund or capital works fund should be confirmed or varied,
(b)  to discuss the preparation of the 10-year capital works fund plan,
(c)  to determine the number of members of the strata committee and to elect the strata committee,
(d)  to decide whether insurance taken out by the owners corporation should be confirmed, varied or extended,
(e)  to decide whether insurance referred to in section 165 (2) should be taken out by the owners corporation,
(f)  to decide if any matter or class of matter is to be determined by the owners corporation in general meeting,
(g)  to decide whether the by-laws for the strata scheme should be altered or added to,
(h)  to decide whether a strata managing agent should be appointed by the owners corporation and, if appointed, what functions of the owners corporation should be delegated to the strata managing agent,
(i)  if there is a strata managing agent, a form of motion to consider the report by the agent as to whether, and what, commissions have been paid to the agent or are likely to be payable to the agent for the following 12 months,
(j)  to decide whether a building manager should be appointed and, if appointed, what functions the building manager should exercise,
(k)  to receive the documents required to be provided under section 16,
(l)  to consider the accounting records and last financial statements prepared,
(m)  to consider the initial maintenance schedule,
(n)  to consider building defects and rectification,
(o)  to appoint an auditor or to decide whether an auditor should be appointed,
(p)  any item prescribed by the regulations for the purposes of this section.
16   Documents and records to be provided to owners corporation at first AGM
(1)  An original owner or lessor of a strata scheme required to convene a meeting under this Division must, not later than 48 hours before its first annual general meeting, deliver to the owners corporation the following—
(a)  all plans, specifications, occupation certificates or other certificates (other than certificates of title for lots), diagrams, depreciation schedules and other documents (including policies of insurance) relating to the parcel or any building on the parcel,
(b)  without limiting paragraph (a), all planning approvals, complying development certificates and related endorsed plans, approvals, “as built” drawings, compliance certificates (within the meaning of the Environmental Planning and Assessment Act 1979), fire safety certificates and warranties relating to the parcel or any building, plant or equipment on the parcel,
(c)  the certificate of title for the common property, the strata roll and any notices or other records relating to the strata scheme,
(d)  the initial maintenance schedule,
(e)  any interim report or final report of a building inspector prepared under Part 11 and relating to any building on the parcel,
(f)  any other document or item relating to the parcel or any building, plant or equipment on the parcel that is prescribed by the regulations for the purposes of this section.
Maximum penalty—100 penalty units.
(2)  An original owner or lessor is only required under this section to deliver to the owners corporation a thing if that thing is in the possession or control of the original owner or lessor or may be obtained by the original owner or lessor by taking reasonable steps to do so.
(3)  This section does not require an original owner or lessor to deliver to the owners corporation any documents that exclusively evidence rights or obligations of the original owner or lessor and that are not capable of being used for the benefit of the owners corporation or any of the other owners.
17   Tribunal may order initial documents to be provided
The Tribunal may, on application by an owners corporation, order an original owner or lessor required to convene a meeting under this Division to provide to the owners corporation a thing that was required to be but was not delivered to the owners corporation in accordance with this Division.
18   AGM must be held
An owners corporation must hold an annual general meeting once in each financial year of the corporation.
19   Other general meetings
(1)  The secretary or a strata committee of an owners corporation may convene a general meeting (that is not an annual general meeting) of the owners corporation at any time.
(2)  The secretary of the owners corporation, or another officer if the secretary is absent, must convene a general meeting (that is not an annual general meeting) of the owners corporation as soon as practicable, and not later than 14 days after, receiving a qualified request.
(3)  A meeting may be convened on a qualified request even if the first annual general meeting has not been held.
(4)  A request is a qualified request for the purposes of this section if it is made by one or more owners of a lot or lots in the strata scheme having a total unit entitlement of at least one-quarter of the aggregate unit entitlements.
20   Tribunal may appoint person to hold first AGM and other meetings
(1)  The Tribunal may, on application by an owners corporation or an owner or mortgagee of a lot in a strata scheme, order a person to convene and hold a meeting of the owners corporation within the time specified in the order if a meeting has not been convened and held in accordance with this Act.
(2)  The person who is to convene and hold the meeting is to be a person nominated by the applicant, or appointed by the Tribunal, who has consented to the nomination or appointment.
21   Unanimous or special resolutions to be amended or revoked in same way
(1)  A unanimous resolution or special resolution of an owners corporation about a matter that is required by or under this Act or the by-laws of a strata scheme to be determined by a resolution of that kind cannot be amended or revoked other than by a subsequent resolution of the same kind.
(2)  However, a unanimous resolution of an owners corporation dealing with common property may be amended by a special resolution.
22   Notice to be given to owners corporation of right to cast vote at meeting
(1) Person with right to vote at meetings must notify owners corporation A person who has an interest in a lot that, subject to this Act, gives the person a right to cast a vote either personally or by nominee at meetings of an owners corporation must give the owners corporation written notice of that interest (a strata interest notice).
(2) Contents of strata interest notice The strata interest notice must specify the following information and, if the interest is a mortgage, include confirmation by the mortgagor or be verified by statutory declaration of the mortgagee—
(a)  the person’s full name and an address for service of notices,
(b)  the lot concerned and the exact nature of the person’s interest in it,
(c)  the date on which the person acquired the interest,
(d)  if the voting entitlement conferred by the interest is one that, according to this Act, is to be exercised by a nominee, the nominee’s full name and address for service of notices.
Note.
 An address for service of notices may be an Australian postal address or an electronic address, including an email address (see section 261).
(3) Other matters to be specified in notice The strata interest notice must specify the manner in which the interest arose and be verified by statutory declaration if any of the following applies to the interest—
(a)  the interest is that of the executor or administrator of the estate of a deceased person,
(b)  the interest is that of the liquidator or receiver in bankruptcy of any person,
(c)  the interest has arisen by operation of law or the order of any court,
(d)  the interest has arisen in any manner otherwise than by transfer of the interest from some other person or the discharge of a mortgage.
(4) Owners corporation may require notice to be given The secretary of the owners corporation, if of the opinion that a person obliged to give notice under this section has not done so, may by a written notice given to the person require the person—
(a)  to state, within 14 days, whether or not the person is a person required to give notice under this section, and
(b)  if the person is such a person, to give that notice.
(5) Person prevented from casting vote if certain requirements not met A person is not entitled to cast a vote at a meeting of the owners corporation if the person has not complied with a notice given to the person under subsection (4) or, in the case of a vote to be tendered through a nominee, if the nominee’s full name and address for service of notices have not been notified under this section.
(6) Changes in certain information to be notified A person who has given notice under this section may by further notice advise any change of nominee or of the person’s or any nominee’s address for service.
23   Meeting procedures and voting
Other procedures for general meetings of the owners corporation and voting at those meetings are set out in Schedule 1.
24   Order invalidating resolution of owners corporation
(1)  The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of this Act or the regulations have not been complied with in relation to the meeting.
(2)  The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of Part 10 (other than Division 6 or 7) of the Strata Schemes Development Act 2015 have not been complied with in relation to the meeting.
(3)  The Tribunal may refuse to make an order under this section only if it considers—
(a)  that the failure to comply with the provisions of this Act or the regulations, or of the Strata Schemes Development Act 2015, did not adversely affect any person, and
(b)  that compliance with the provisions would not have resulted in a failure to pass the resolution or affected the result of the election.
(4)  The Tribunal may not make an order invalidating a resolution under subsection (2) if an application for an order has been made under Division 6 of Part 10 of the Strata Schemes Development Act 2015 in relation to the same or a related matter.
(5)  The Tribunal may not make an order under this section invalidating a decision by an owners corporation to approve, or not to approve, the appointment of a building inspector under Part 11.
25   Order where voting rights denied or due notice of item of business not given
(1)  The Tribunal may, on application by a person entitled to vote on a motion for a resolution of an owners corporation at a general meeting, order that a resolution passed at the general meeting be treated as a nullity on and from the date of the order.
(2)  The Tribunal must not make the order unless the Tribunal is satisfied that the resolution would not have been passed but for the fact that the applicant for the order—
(a)  was improperly denied a vote on the motion for the resolution, or
(b)  was not given due notice of the item of business in relation to which the resolution was passed.
(3)  An application for an order may not be made unless—
(a)  an application for mediation of the dispute was made not later than 28 days after the date of the meeting at which the resolution was passed, or
(b)  if an application for mediation was not made, the application for the order was made not later than 28 days after the date of the meeting at which the resolution was passed.
(4)  If a resolution that is to be treated as a nullity by an order changes the by-laws and the order has been recorded in the Register under this Act, the by-laws have force and effect on and from the date the order is so recorded to the same extent as they would have had if the change had not been made.
(5)  Subsection (4) is subject to the by-laws having been or being changed in accordance with this Act and to any relevant order made by a superior court.
(6)  The Tribunal may not make an order under this section if an application for an order has been made under Division 6 of Part 10 of the Strata Schemes Development Act 2015 in relation to the same or a related matter.
(7)  The Tribunal may not make an order under this section invalidating a decision by an owners corporation to approve, or not to approve, the appointment of a building inspector under Part 11.
Division 4 Limitation on functions during initial period
26   Restrictions on powers of owners corporation during initial period
(1)  An owners corporation for a strata scheme must not, during the initial period, do any of the following things unless the owners corporation is authorised to do so by an order of the Tribunal under this Division—
(a)  alter any common property or erect any structure on the common property otherwise than in accordance with a strata development contract,
(b)  incur a debt for an amount that exceeds the amount then available for repayment of the debt from its administrative fund or its capital works fund,
(c)  appoint a strata managing agent or a building manager or other person to assist it in the management or control of use of the common property, or the maintenance or repair of the common property, for a period extending beyond the holding of the first annual general meeting of the owners corporation,
(d)  borrow money or give securities.
(2)  An owners corporation may recover from the original owner—
(a)  as a debt, any amount for which the owners corporation is liable because of a contravention of subsection (1) (b), together with the expenses of the owners corporation incurred in recovering that amount, and
(b)  as damages for breach of statutory duty, any loss suffered by the owners corporation as a result of any other contravention of this section.
(3)  An owner may recover, as damages for breach of statutory duty, any loss that has been suffered by the owner as a result of a contravention of this section (other than subsection (1) (b)).
(4)  It is a defence to an action under this section in debt or for damages if it is proved that the original owner—
(a)  did not know of the contravention on which the action is based, or
(b)  was not in a position to influence the conduct of the owners corporation in relation to the contravention, or
(c)  used due diligence to prevent the contravention.
(5)  A remedy available under this section does not affect any other remedy.
Note.
 Section 140 places restrictions on the making, amendment and repeal of by-laws during the initial period.
27   Order to authorise certain acts during initial period
(1)  The Tribunal may, on application, make an order—
(a)  waiving, varying or extinguishing a restriction relating to the initial period of an owners corporation (whether or not imposed by this Act or the Strata Schemes Development Act 2015), and
(b)  authorising any matter to be done in relation to the waiving, varying or extinguishing of that restriction.
(2)  The application may be made by the owners corporation, the original owner or an owner of a lot in the strata scheme or a proposed strata scheme.
(3)  Written notice of an application must be given to—
(a)  the owners corporation and each owner of a lot in the strata scheme or proposed strata scheme to which the application relates, unless the owners corporation or the owner is the applicant, and
(b)  each registered mortgagee of a lot in the strata scheme and any mortgagee specified on the strata roll for the lot and any covenant chargee having the benefit of a covenant charge affecting a lot, and
(c)  any other persons that the Tribunal directs.
(4)  The Tribunal may order that notice of an application be dispensed with if the Tribunal considers it appropriate in the circumstances of the case. Any person to whom notice is given is entitled to appear and be heard on the hearing of the application.
(5)  Notice of an application is not required to be given to a mortgagee specified on the strata roll for a lot if the rights of the person as a mortgagee—
(a)  are suspended for the time being because of a sub-mortgage, particulars of which are specified on the strata roll, or
(b)  have been terminated because of an instrument, particulars of which are specified on the strata roll.
Division 5 Effect of termination order on owners corporation
28   Termination of strata scheme
(1)  An owners corporation for a strata scheme that is subject to an order under the Strata Schemes Development Act 2015 for the termination of the strata scheme continues in existence until it is wound up in accordance with the order.
(2)  While it so continues in existence, the owners corporation is constituted of persons who the order specifies are liable to contribute money required for the discharge of the liabilities of the owners corporation and persons who the order specifies are entitled to share in a distribution of assets of the owners corporation.