Part 4 Others involved in management—strata managing agents

Introductory note. This Part allows an owners corporation for a strata scheme to appoint a person who is licensed as a strata managing agent under the Property, Stock and Business Agents Act 2002 as a strata managing agent for the scheme. An owners corporation may delegate its functions to its strata managing agent. However, an owners corporation may not delegate the making of certain decisions that this Act requires to be made by the owners corporation, such as decisions on the amount of contributions to the administrative and sinking funds to be levied on owners.

Division 1 Appointment of strata managing agent

26   What is a strata managing agent?

An owners corporation may appoint a person who is the holder of a strata managing agent’s licence under the Property, Stock and Business Agents Act 2002 to be the strata managing agent of the strata scheme.

Note. The Property, Stock and Business Agents Act 2002 defines strata managing agent as a person (whether or not such person carries on any other business) who, for reward (whether monetary or otherwise), exercises or performs any function of an owners corporation under this Act, not being:

(a)  a person who:

(i)  is the owner of a lot to which the strata scheme for which the owners corporation is constituted relates, and

(ii)  is the secretary or treasurer of the executive committee of the owners corporation, and

(iii)  exercises only functions of the owners corporation required, by the by-laws in force in respect of the strata scheme for which the owners corporation is constituted, to be exercised by the secretary or treasurer of that executive committee or by the owners corporation, or

(b)  a person who maintains or repairs any property for the maintenance and repair of which the owners corporation is responsible.

27   How is a strata managing agent appointed?

(1)  A strata managing agent is to be appointed by instrument in writing authorised by a resolution at a general meeting of the owners corporation.

(2)  An owners corporation may terminate the appointment of a strata managing agent in accordance with the instrument of appointment if authorised by a resolution at a general meeting of the owners corporation.

Division 2 Functions of strata managing agent

28   What functions of an owners corporation can a strata managing agent exercise?

(1)  An owners corporation may, by the instrument appointing a strata managing agent or some other instrument, delegate to the strata managing agent:

(a)  all of its functions, or

(b)  any one or more of its functions specified in the instrument, or

(c)  all of its functions except those specified in the instrument,

      but only if authorised to do so by a resolution at a general meeting and subject to subsection (3).

(2)  An owners corporation may, if authorised to do so by a resolution at a general meeting, revoke a delegation under this section.

(3)  An owners corporation cannot delegate to a strata managing agent its power to make:

(a)  a delegation under this section, or

(b)  a decision on a matter that is required to be decided by the owners corporation, or

(c)  a determination relating to the levying or payment of contributions.

(4)  A function delegated under this section may, while the delegation remains unrevoked, be exercised from time to time in accordance with the delegation.

(5)  A delegation under this section may be made subject to such conditions or such limitations as to the exercise of all or any of the functions, or as to time or circumstances, as may be specified in the instrument of delegation.

(6)  Despite any delegation made under this section, the owners corporation may continue to exercise all or any of the functions delegated.

(7)  Any act or thing done or suffered by a strata managing agent while acting in the exercise of a delegation under this section:

(a)  has the same effect as if it had been done or suffered by the owners corporation, and

(b)  is taken to have been done or suffered by the owners corporation.

29   Can a strata managing agent exercise the functions of the chairperson, secretary and treasurer or the executive committee?

(1)  The instrument of appointment of a strata managing agent may provide that the strata managing agent has and may exercise all the functions of the chairperson, secretary, treasurer or executive committee of an owners corporation or such of those functions as may be specified in the instrument.

(2)  However, the chairperson, secretary, treasurer and executive committee of an owners corporation may continue to exercise all or any of the functions that the strata managing agent is authorised to exercise.

(3)  Any act or thing done or suffered by a strata managing agent in the exercise of any function of the chairperson, secretary, treasurer or executive committee conferred on the strata managing agent in accordance with this section:

(a)  has the same effect as it would have had if it had been done or suffered by the chairperson, secretary, treasurer or executive committee, as the case may be, and

(b)  is taken to have been done or suffered by the chairperson, secretary, treasurer or executive committee, as the case may be.

(4)  This section is subject to section 32.

30   Breach of duty by strata managing agent

If a strata managing agent has been delegated a duty by an owners corporation and a breach of the duty by the owners corporation would constitute an offence under a provision of this Act, the agent is guilty of an offence under that provision (instead of the owners corporation) for any breach of the duty by the agent occurring while the delegation remains in force.

31   Strata managing agent to record exercise of functions

(1)  A strata managing agent who exercises a function of an owners corporation must, immediately after its exercise, make a written record specifying the function and the manner in which it was exercised.

(2)  The strata managing agent must serve a copy of the written record on the owners corporation.

32   Exercise of functions of strata managing agent appointed by an Adjudicator

If a strata managing agent is appointed by an Adjudicator to exercise a function:

(a)  the function cannot, while the strata managing agent holds office, be exercised by any other person, and

(b)  anything done or suffered by the strata managing agent in the exercise of the function has the same effect as it would have if the function were exercised by the person who, but for paragraph (a), could have exercised it.

Division 3 Accountability of strata managing agent

33   Information may be required relating to strata managing agent’s trust account

An owners corporation may require a strata managing agent to provide the following information relating to the trust account that the agent is required to operate under the Property, Stock and Business Agents Act 2002:

(a)  the name and number of the account,

(b)  the name of the financial institution in which the account is current,

(c)  the balance in the account standing to the credit of the owners corporation on a specified date,

(d)  particulars of all cheques drawn on the account on behalf of the owners corporation as at that date and not presented and duly paid.

34   Information may be required relating to other accounts of the strata managing agent

An owners corporation may require a strata managing agent to provide the following information relating to any other accounts on which the agent operates in the exercise of functions of the owners corporation:

(a)  the names and numbers of the accounts,

(b)  the names of the financial institutions in which the accounts are current,

(c)  the balance in each of the accounts standing to the credit of the owners corporation on a specified date,

(d)  particulars of all cheques drawn on each of the accounts as at that date and not presented and duly paid.

35   Information may be required relating to money received by the strata managing agent from the owners corporation

An owners corporation may require a strata managing agent to provide:

(a)  full particulars relating to the payment of money to, or the receipt of money by, the agent on behalf of the owners corporation, and

(b)  if the money is not still held by the agent, the manner and time of disposal of the money.

36   Information may be required relating to transactions entered into by a strata managing agent for an owners corporation

An owners corporation may require a strata managing agent to provide full particulars as to any specified transaction that has been entered into by the agent on behalf of the owners corporation.

37   Procedure for requiring information from strata managing agent

(1)  A requirement for information by an owners corporation under this Division must be made by notice in writing served on the strata managing agent.

(2)  The notice must specify a member of the executive committee to whom the information is to be delivered.

(3)  The strata managing agent must comply with the notice by providing a written statement, containing the information required, within 7 days after service of the notice.

Maximum penalty: 20 penalty units.

(4)  A person is not guilty of failing to comply with a notice under this section if reasonable cause for the failure is shown.

(5)  A strata managing agent must not knowingly provide information that is false or misleading in a material particular in a statement delivered in response to a notice under this section.

Maximum penalty (subsection (5)): 20 penalty units.

38   Who is responsible for providing information if a strata managing agent ceases to hold a licence or dies?

If a strata managing agent ceases to hold a licence under the Property, Stock and Business Agents Act 2002 to carry on business as a strata managing agent or dies:

(a)  this Division (except sections 35 and 36) applies to any person who is required by that Act to maintain a trust account in connection with the business of the former licensee, and

(b)  this Division (except section 33) applies to any person who is required by that Act to preserve records kept by the former licensee,

and so applies as if the person concerned were the strata managing agent.

39   Exemption for information relating to certain transactions

A strata managing agent or other person is not required to provide information under this Division in relation to a transaction that took place more than 3 years before service of the notice requiring the information.

40   Certain provisions of other Acts requiring agents to provide information not to apply to affairs of owners corporation

The provisions of section 101 of the Property, Stock and Business Agents Act 2002 do not apply to or in respect of a transaction if information about the transaction may be required to be provided to an owners corporation under this Division.

Note. The provisions of section 101 of the Property, Stock and Business Agents Act 2002 enable a person directly concerned in a transaction with a licensee under that Act to require an itemised account of the transaction from the licensee.