If a member considers that the notice requirement or some other procedural requirement for the proper calling of a scheme meeting was not complied with, he or she can apply to have this confirmed by the CSOS and ask that an appropriate order made in regard to the business purportedly done at the gathering.
In terms of section 39 (4) (b) of the CSOS Act, an application may be for:
“an order declaring that a purported meeting of the executive committee, or a purported general meeting of the association, was not validly convened”
Examples of issues
One of the most common reasons a meeting is not validly convened is because proper notice has not been given, either because proper or sufficient notice was not given to all persons entitled to attend.
In such circumstances an owner who is prejudiced can apply to have the CSOS adjudicator order that the meeting was not validly convened and to have any decision taken at that meeting set aside.
Example of order
An example of the type of order the CSOS could give is:
1. Notice of the general meeting of the Jolly Homeowners Association purportedly held on (insert date) was intentionally not given to applicants;
2. The general meeting was not validly convened; and
3. The decisions taken at the purported meeting are invalid.
In terms of section 41 of the CSOS Act:
(1) An application for an order declaring any decision of an association or an executive committee to be void, may not be made later than 60 days after such a decision has been taken.
(2) An ombud may, on good cause shown, condone the late submission of an application contemplated in subsection (1).
In calculating the number of days that has passed since the decision, you must exclude the date on which the decision was made. If the 60 day period expires on a Sunday or public holiday, the period is extended so that it expires on the next working day.
An example of the type of “good cause” required to allow an ombud to condone the late submission of an application could, for example, also include a situation where:
- the trustees of a sectional title scheme failed to distribute the minutes of the meeting as required under the prescribed management rules and the applicant therefore did not get the notice he or she was supposed to get that the resolution had been taken, or
- some person took steps that prevented the applicant coming to know of the decision that he or she now seeks to overturn.
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