OUTSTANDING ISSUES, CONFIRMATIONS & TASKS

Decisions Unapproved - Decisions Not Enacted - Decisions Unauthorised - The Way Forward

DECISIONS BY THE COMMITTEE THAT ARE UNAPPROVED and/or UNCONFIRMED
Unfortunately there have been many decisions made by the committee that have not been recorded or reported to Owners as required by the legislation. See Div. 5, BCCM Reg 2020 in Doc-Ref 600E. Here are just six examples:

1. The authorisation of an internal review of the 20/21 financials conducted by Fiona Day, Christine Mathew & Margaret Comber; yet referenced in several committee meetings and minutes.
2. The establishment of the Quays Website, referenced in several committee meetings & minutes but without any reference to setup and/or ongoing costs.
3. The committee-submitted amendment to a statutory motion at the 16/6/22 AGM that: the next audit cover the two years ending 31/3/23.
4.   The appointment of an auditor for the 21/22 financials and at what cost and with what scope of works.
5.   The approval (and the distribution to Owners) of the revised 21/22 financials.
6.   VOCM on 8/11/22 re assignment of BCM Agreement not confirmed at Committee Meeting on 12 /12/22.

(It is my opinion that there are many more such decisions that we do not know about)

There is no record to confirm that the committee voted either in meeting or outside meeting (VOCM) to make these first five decisions, as is required by the regulations. And there are no confirmations of any of the six decisions at any subsequent committee meetings - again, as is required by the regulations.


DECISIONS BY OWNERS AT GENERAL MEETINGS THAT THE COMMITTEE HAVE NOT ENACTED
1. AGM 24/8/21, Motion 3, Audit the 21/22 Financials (55 for the audit; 6 against)

This audit has since been enacted in October 2022, albeit that it may well be an unauthorised appointment of an auditor by the committee instead of by Owners; and, well after the AGM and voting on the 21/22 financials in June 2022. 

2. AGM 30/9/21, Motion 3, Audit the 20/21 Financials (48 for the audit; 11 against)

The 20/21 financials were audited twice, once in April 2021 and again in May 2021. Although there appears to be no need for a  third audit the motion must be either enacted or revoked.

3. AGM 24/8/21, Motion 10, Legal Advice on Caretaking and Letting Agreement (26 for the motion; 6 against)
"That in the event of any request that a motion be put to the body corporate seeking approval to vary the Caretaking and Letting Agreement, the body corporate committee will as soon as possible:

• obtain professional legal advice, for a fee not exceeding $2,000, concerning the issues and merits of the variation and/or options for reducing the caretaker’s fees in return for the variation;

• distribute copies of this legal advice to the body corporate; and

• make a recommendation, with reasons, to the body corporate."

ELR advised the committee in February 2023 that they sought a Deed Of Variation Term Extension of 5 years to 2035.
The committee failed to enact Motion 10 and but proceeded to submit a motion to the AGM, scheduled for 28/6/23 without any prior advice to Owners.

 DECISIONS BY THE COMMITTEE CONTRARY TO THEIR AUTHORITY

 1. The committee has, in my opinion, appointed an Auditor for the 21/22 financials without authority to do so; and, without any reference to obtaining Owners' approval at a future general meeting. 

Finally, after receiving the independent, professional confirmations regarding the illegitimacy of the financials, the committee took it upon themselves to appoint an auditor to review the financials.
Note, that they appointed DDA as the auditor - the same auditor that they urged Owners not to vote for at the 2021 AGM!

The appointment of an auditor is a statutory decision which can only be made by Owners' vote at a general meeting. Furthermore, the committee, failed to table or confirm a VOCM record as to when, where and how they decided (albeit illegally) to appoint this auditor - as is required by the regulations.

 2. The committee has, in my opinion and without proper consideration of the correct procedures and without regard of consequences, issued revised 21/22 financials and the auditor's report to Owners.

While Owners might welcome these items that were well overdue, the result is that Owners now have two sets of 21/22 financials. 

The first set, (v1) as approved by the committee and Owners at the last AGM, but with unaudited and incorrect figures.
The second set, (v2) unapproved by the committee and Owners, yet now audited and with corrected figures.

The approval of financials is a statutory decision which can only be made by Owners' vote at a general meeting. Furthermore, the committee, failed to table or confirm a VOCM record as to when, where and how they approved these new financials - as is required by the regulations. 

So which set is legal?
Unfortunately, I believe it is the first set (v1) with unaudited and incorrect figures but as approved by the Owners. The second set has not been approved by Owners.
Potential buyers will be concerned by these anomalies, if full disclosure is made to them, as it should be. Owners will be concerned about any potential exposure to legal liability, should a sale or purchase, based on v1 be disputed.


THE WAY FORWARD

I would suggest that the only way to clean-up this mess is firstly, a Committee Meeting and ASAP thereafter, 
a General Meeting.

The committee meeting should consider/vote/propose the following:
1. Withdraw the committee’s approval of the v1 21/22 financials.

2. Submit a motion for the next General Meeting to revoke the motion approving the incorrect and inaccurate v1 financials issued to Owners for the 16/6/22 AGM.
3. Approve in retrospect the v2 financials and their distribution to Owners -subject to 4. below.
4. Submit a motion for the next general meeting to approve the v2 financials.
5. Approve in retrospect the appointment of Dickfos Dunn Adam as auditors of the accounts for the financial year ended 31 March 2022.
6. Submit a motion for the next general meeting to approve the appointment of Dickfos Dunn Adam as auditors of the accounts for the financial year ended 31 March 2022.
7. Submit a motion to revoke Motion 3 of the 30/9/21 EGM to audit the 20/21 financials; or, enact it.
8. Table and confirm all unapproved and/or confirmed committee decisions - commencing with the six mentioned above.
9. Include an apology to Owners for the inadequate and inaccurate presentation and approval of the v1 financials.
10. Include an apology for the failure to keep Owners informed of committee decisions, especially decisions made without proper authority by the committee and which only Owners should have decided.

Motions for the General Meeting could be, but not limited to: 
1. Revoke the motion approving the incorrect & inaccurate v1 financials issued for the 16/6/22 AGM.
2. Approve the v2 financials.
3.  Approve the appointment of Dickfos Dunn Adam as auditors of the financial year ended 31 March 2022.