Tuesday, November 15, 2016

Body Corporate Committee members. A thankless job

The latest events at Palm Beach North only serve to highlight why it is becoming more difficult to encourage Body Corporate Committee members to continue to serve. The Body Corporate for Palm Beach North has had a fairly colourful history, part of which is detailed in various Disputes that have been lodged with the Commissioner over the years.

The Body Corporate Committee recently had their Budget meeting at the offices of their Body Corporate Manager, Archers. In the last few years, there has been some conflict between one owner and the Committee.

At the last AGM, the owner lodged a number of motions alleging a fairly vague breach of conduct against various committee members along with pages of explanatory notes. The Committee responded to owners with a very detailed explanation of why they disagreed with the owner. All of this was published as part of the agenda for the AGM and sent to all owners.

As an owner in the complex, it is my opinion that the Committee has done a good job and the allegations were frivolous. It is certainly understandable that the Committee members were offended by the allegations. There was a concern that the published motions and explanatory notes in the AGM may have defamed the Committee members but legal action is expensive and there is never any guarantee of results.

The outcome was that all motions that the owner lodged were not carried. However, the owner was elected as a Committee member along with the other incumbent Committee members. An EGM was held a few months later resulting in the removal from the Committee of the owner who had lodged the allegations against the previous Committee.

Flash forward to the recent Budget meeting and the Body Corporate Manager advised that the owner had once again lodged a series of motions and explanatory notes detailing allegations against the Committee. It is no wonder that the Committee members at the Budget meeting asked the Body Corporate Manager to exclude these motions from the Agenda. The Committee were concerned that by including the motions on the Agenda, the Body Corporate would be publishing libellous statements. The Body Corporate Manager explained that they had to comply with the Act and had to publish the motions as they had been lodged.

After some discussion at the meeting, the Body Corporate Manager advised the Committee that they would be terminating the contract immediately and ended the meeting before completing the business on the Agenda. This obviously left the Committee and the Body Corporate for Palm Beach North in a very difficult position as they were suddenly left without a Body Corporate Manager and no budget for the upcoming AGM. I can understand that the Body Corporate Manager insisted on complying with the Act but it is also understandable that the Body Corporate Committee members were very upset at the prospect of authorising a document that would be distributed to all owners that contained possible defamation against them.

This is another example of where the Act does not encourage owners to stand as Committee members. Section 100 and 111a of The Act states that the Body Corporate cannot be held liable for a required motion that is considered to be defamatory.

The Act requires that any motion and explanatory material that is submitted by an owner must be included in the Agenda for owners to vote on. If that material defames another person, then that person can take individual legal action against the person who submitted the motion but not the Body Corporate. Basically, an owner can submit any motion he or she likes.

It is not surprising that many question the fairness of this Section of the Act. Obviously, motions should ideally be included on the Agenda as submitted but the Act leaves plenty of room for someone to abuse that privilege and submit something that is defamatory or abusive with very little chance of legal reprisals.

I guess it would be unfair to hold the Body Corporate liable for a motion that could defame someone else but it also seems unfair for the Act to "require" the Body Corporate to publish material that may defame another person.

There have been other examples of motions that have been considered defamatory with other Bodies Corporate and these motions generally cause great distress to those affected. Ultimately, this is another example of why many owners prefer to leave the role of Committee member to someone else.
The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner’s perspective on Body Corporate issues. If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.

No comments:

Post a Comment