Owners Corporations Case law update- Lot owner asks VCAT to change the AGM Minutes please! VCAT says “No”.

What is it about?

The case is about a lot owner who sought various orders including:

1. VCAT to amend the minutes of an AGM
2. VCAT to amend a chairpersons report given at an AGM

The applicant sought an order directing the Owners Corporation to retrospectively amend the annual general meeting minutes to remove reference to alleged property damage by the occupant of the applicants lot to common property, namely the lobby door and the door of Lot 9.

The applicant also sought an order that the minutes of the 2022 annual general meeting be amended to include a statement the committee had not authorised the taking of the dash-cam surveillance footage, that dates and times were not apparent from the footage, that the purpose of the footage was not disclosed, and that the footage had not been presented to the St Kilda police.

The applicant further sought an order that the dash camera surveillance footage of the applicant and her son be destroyed, a written statement be given to all owners by the first respondent that the dash cam surveillance has ceased, and that the first respondent promise not to re-commence such activity.
 

What did the Tribunal determine?

There was no rule in the registered rules about minute taking for the OC.

Section 81 of the Owners Corporations Act 2006 sets out the following requirements for the keeping of minutes:
 

Minutes of meetings

(1) The Owners Corporation must arrange for minutes to be kept of general meetings.

(2) The minimum information to be recorded in the minutes for each general meeting is-

(a) the date, time and place of the meeting; and

(b) the name of lot owners present; and

(c) the names of lot owners who have provided proxies; and

(d) the names of proxies present; and

(e) the voting on any resolutions; and

(f) the text of all resolutions of the Owners Corporation made at the general meeting.

The Tribunal noted that there is no other guidance in the OC Act regarding recording meeting content nor as to the “required” contents of the minutes of Owners Corporation meetings.
 

So does VCAT have the power to amend minutes?

The Tribunal stated:

“Unless exceptional circumstances exist, a tribunal would be reluctant to interfere with a majority decision of the members of an Owners Corporation made at a meeting of the Owners Corporation. Unless a patent error on the face of the record has occurred, where the majority of the owners regard the minutes as accurate, then the Tribunal ought not amend the minutes, thereby supplanting its interpretation over the majority.

Where an error “on the record” of the minutes of a Owners Corporation has occurred, it may be appropriate for the Tribunal to amend or adjust the minutes if it is fair to do so, to reflect what was determined at the meeting having regard to the material (if any) presented to the meeting and adopted by resolution.

The correction can only be in relation to matters resolved. The power cannot extend to include material, which was not before the meeting, nor should it be exercised to require a detailed exposition of the proceedings of the meeting which led to the resolution.

The Owners Corporation obligation is to comply with s 81 of the OC Act. A correction can only be made to ensure adherence to that requirement.”
 

What did the Tribunal decide?

There was no reason to interfere with the minutes and dismissed the Applicant’s application. Primarily, that post AGM submissions cannot better reflect the proceedings if those submissions did not comprise any part of the proceedings at the AGM. Material or submissions which were not before the Owners Corporation meeting ought not be subsequently considered in a Tribunal hearing of this nature.

You can’t mention items in the AGM that were not subject to a resolution if there is no discussion or mention of them in the minutes.

What was critical in this matter was that another AGM had occurred and the majority of lot owners had approved the minutes from the last meeting as being correct.

The Tribunal will not interfere with a decision of the majority in the absence of a legal error.

Just because someone in a report provides an inaccuracy does not mean that the report must be amended to correct the inaccuracy. The contents of the report are the contents of the report.
 

Summing up

Whilst it can be helpful for Owners Corporations to fully set out in detail what happens at an AGM only those matters under section 81 of the OC Act need be included if the OC does not have any special rules about minute taking.

Sometimes it is better to have your minutes be brief than too expansive, particularly when related to matters where there is no resolution. The time for contesting minutes is shortly after they have been distributed and before they have been adopted as correct by the lot owners at the next meeting.

Lot owners can sometimes forget that one voice on an OC is just that and can be out voted by the majority. Providing the majority are ensuring the OC is acting within the OC Act a minority lot owner can complain but not be able to take any action, particularly at VCAT.
 

Need advice or assistance in a VCAT case?

Contact Phillip Leaman who heads the Owners Corporations team at Tisher Liner FC Law. We have extensive experience in assisting Owners Corporations in prosecuting and defending VCAT applications and providing advice concerning the operation of the Owners Corporations Act 2006. 
 

Disclaimer

The above does not constitute legal advice, but is information which may be of general interest. Tisher Liner FC Law will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.