Northern Territory Numbered Regulations Northern Territory Numbered RegulationsSchedule 3 Management module 3 – small scheme
regulation 5 (2)
In this management module:
"annual general meeting", see clause 22.
"committee meeting" means a meeting of the committee of a body corporate.
"chairperson":
(a) of a committee – means the person elected under clause 7(1)(a); or
(b) of a body corporate – means:
(i) if the body corporate decides to form a committee – the chairperson under clause 7 (2); or
(ii) otherwise – the person elected under clause 29 (1)(a).
"company" means:
(a) a company as defined in section 9 of the Corporations Act 2001; or
(b) an incorporated association as defined in section 4 of the Associations Act ; or
(c) any other body corporate.
"general meeting" means a meeting of a body corporate.
"interim resolution", see clause 3 .
"restricted matter", for a body corporate, means a matter a decision on which, under the Act or clause 19 of this management module, may be made only by the body corporate.
"secretary":
(a) of a committee – means the person elected under clause 7(1)(b); or
(b) of a body corporate – means:
(i) if the body corporate decides to form a committee – the secretary under clause 7 (2); or
(ii) otherwise – the person elected under clause 29 (1)(b).
"special levy" means a levy charged under clause 41 or 42 .
"teleconferencing "includes the use of telephone, computer or video equipment.
(1) A decision of a body corporate must be made:
(a) at a general meeting of the body corporate; or
(b) in accordance with the process set out in clause 26.
(2) Unless otherwise specified in this management module, a motion is passed at a general meeting if it is passed by an ordinary resolution.
(1) An interim resolution is a resolution of a committee or body corporate made at a meeting without a quorum.
(2) An interim resolution does not have effect until it becomes a resolution in accordance with the process set out:
(a) for an interim resolution of a committee – in clause 14; or
(b) for an interim resolution of a body corporate – in clause 26 .
Part 2 Committee of body corporate
Division 1 Preliminary matters
This Part applies if the body corporate decides, under section 74(1)(c) of the Act, to form a committee.
Division 2 Constitution of committee
(1) The body corporate must:
(a) decide the number of members who will constitute the committee; and
(b) elect the committee members.
(2) The number of committee members must be:
(a) at least 2; and
(b) unless decided by a special resolution – not more than 7.
(3) The body corporate may, by a special resolution at a later annual general meeting, vary the number.
(4) The committee consists of all the members of the body corporate if:
(a) there are not more than 3 members of the body corporate; or
(b) the number of members of the body corporate is equal to or less than the number decided to be the number of committee members.
(a) the committee members are taken to be elected committee members; and
(b) if a member of the body corporate is a company – the member must appoint an individual to be a committee member in place of the member.
(1) The body corporate must elect the committee members at each annual general meeting.
(2) If a member of the body corporate is a company, the member may appoint an individual to stand for election on behalf of the member.
Note for clause 6
Under section 74(3) of the Act, a committee member must be:
(a) a unit owner that is an individual; or
(b) an individual appointed by a unit owner that is a body corporate.
(1) At the first committee meeting after the annual general meeting, the committee must elect:
(a) the chairperson of the committee; and
(b) the secretary of the committee.
(2) The chairperson and secretary of the committee are also the chairperson and secretary of the body corporate.
(3) The chairperson and secretary hold office for the term and on the conditions decided by the body corporate.
(1) The term of office of a committee member expires immediately before the election of the committee members at the next annual general meeting after the member's election.
(2) A committee member leaves office before the member's term expires:
(a) for a committee member who is a unit owner that is an individual – if the committee member stops being a unit owner; or
(b) for a committee member who is an appointee of a unit owner that is a company – if the unit owner:
(i) stops being a unit owner; or
(ii) gives the body corporate written notice that the unit owner has terminated the appointment of the committee member; or
(c) if the committee member resigns from office by written notice to the body corporate; or
(d) if the body corporate removes the committee member from office under clause 9 .
(3) If a committee member leaves office before the committee member's term expires, the committee must appoint another member of the body corporate, who is a person mentioned in section 74(3) of the Act, to be a committee member for the unexpired part of the term.
(4) However, if the committee consists of all the members of the body corporate because of clause 5 (4):
(a) subclauses (2)(c) and (3) do not apply; and
(b) if the body corporate removes a committee member from office under clause 9, the committee continues to exist without the member.
(1) If the body corporate believes a committee member has breached the code of conduct, the body corporate may decide to give the committee member a written notice stating the following:
(a) the body corporate believes the committee member has breached a stated provision of the code of conduct and the basis for that belief;
(b) the committee member may give the body corporate, within 21 working days after the committee member receives the notice, a written response to the notice;
(c) the body corporate will consider a motion to remove the committee member from office for the breach at the next general meeting of the body corporate called after the period mentioned in paragraph (b) ends.
(2) The body corporate must:
(a) include on the agenda of the next general meeting of the body corporate, called after the period mentioned in subclause (1)(b) ends, a motion to remove the committee member from office for breaching the code of conduct; and
(b) attach to the agenda a copy of the notice given to the committee member.
(3) The body corporate may decide to remove the committee member from office at the next general meeting mentioned in subclause (2)(a).
(4) In this clause:
"code of conduct "means the code of conduct that applies to a committee member under section 77 of the Act.
The committee may decide how often it meets.
A committee meeting may be called by a committee member.
(1) The committee member who calls the committee meeting must give written notice of the meeting to each committee member at least 3 working days before the date of the meeting.
(2) The notice must specify the date, time and place of the meeting.
A quorum for the committee meeting exists if at least 50% of the committee members are present at the meeting.
(1) If there is no quorum present at the meeting, the meeting may take place, but all resolutions made at the meeting are interim resolutions.
(2) An interim resolution becomes a resolution of the committee if it is confirmed at the next committee meeting at which a quorum is present.
(1) A committee member may attend and participate in the committee meeting by teleconferencing.
(2) The secretary of the committee must arrange teleconferencing facilities if requested to do so by the committee member.
(3) A committee member who attends a meeting by teleconferencing is taken to be present at the meeting.
Except as otherwise provided in the Act and this Division, the committee may decide the procedures for the committee meeting.
(1) The secretary of the committee must keep minutes of each committee meeting.
(2) The following matters must be recorded in the minutes:
(a) the date, time and place of the meeting;
(b) the names of the committee members present at the meeting;
(c) the names of the committee members voting at the meeting;
(d) all resolutions of the committee made at the meeting;
(e) the voting on all resolutions of the committee at the meeting.
(1) A decision of the committee on a matter is taken to be a decision of the body corporate unless the matter is a restricted matter.
(2) If the matter is a restricted matter, the committee's decision has no effect.
Part 3 Meetings of body corporate
Division 1 Matters to be decided by body corporate
Except as otherwise provided by the Act, the body corporate may decide that a matter concerning the scheme may be decided only by the body corporate.
Within 3 months after the registration of a scheme statement, the original owner for the scheme must call the first annual general meeting of the body corporate for the scheme.
(1) At the first annual general meeting of the body corporate, the original owner for the scheme must give the body corporate the following:
(a) the proposed budget for the first financial year for the body corporate;
(b) a list of all body corporate assets and liabilities;
(c) the name and contact address of each unit owner;
(d) if a body corporate manager has been engaged – the name and business address of the body corporate manager;
(e) a copy of the scheme statement;
(f) the accounting records kept by the original owner for the body corporate;
(g) documents evidencing each contract, lease and licence binding or benefiting the body corporate;
(h) each certificate of insurance in force for the scheme;
(i) documents evidencing each warranty or guarantee given on any matter for which the body corporate is responsible;
(j) the seal of the body corporate;
(k) the certificate of title for the common property of the scheme;
(l) a copy of this management module.
(2) However, the original owner is not required to give the certificate of title for the common property if it is not in the possession or under the control of the original owner.
Note for clause 21
Under regulation 7 (1), it is an offence for the original owner to fail to comply with this clause.
After the first annual general meeting, the body corporate must hold a general meeting (the annual general meeting ):
(a) at least once every calendar year; and
(b) within 15 months after the last annual general meeting.
A general meeting of a body corporate may be called by a person who has the right to vote at the meeting.
(1) The person calling the general meeting must give written notice of the meeting to each person who has the right to vote at the meeting at least 14 working days before the date of the meeting.
(2) The notice must:
(a) specify the date, time and place of the meeting; and
(b) include the agenda for the meeting.
(3) The proceedings at the meeting are not invalidated only because notice of the meeting is not given in accordance with this clause.
(4) However, the meeting must be adjourned to a later date decided by the persons present who have the right to vote at the meeting if:
(a) notice of the meeting is given to a person who has the right to vote at the meeting after the last day for giving notice under subclause (1); and
(b) the person requests an adjournment:
(i) before the meeting, in writing to the secretary of the body corporate; or
(ii) at the meeting.
A quorum for the general meeting exists if persons who together have the right to vote in relation to at least 50% of the total interest entitlements of the scheme are present at the meeting.
(1) If there is no quorum present at the general meeting, the meeting may take place but all resolutions made at the meeting are interim resolutions.
(2) An interim resolution becomes a resolution of the body corporate if it is confirmed at the next general meeting at which a quorum is present.
(1) A person who has the right to vote at a general meeting may attend and participate in the general meeting by teleconferencing.
(2) The secretary of the body corporate must arrange teleconferencing facilities if requested to do so by the member.
(3) A person who attends a meeting by teleconferencing is taken to be present at the meeting.
Except as otherwise provided in the Act and this Division, the body corporate may decide the procedures for the general meeting.
(1) If the body corporate has not formed a committee, the body corporate must, at a general meeting, elect:
(a) the chairperson of the body corporate; and
(b) the secretary of the body corporate.
(2) The chairperson and secretary hold office for the term and on the conditions decided by the body corporate.
(1) The chairperson of the body corporate is the chairperson of the general meeting.
(2) If the chairperson is unable to act as chairperson of the meeting, the persons present who have the right to vote at the meeting must elect to be chairperson for the meeting a person present at the meeting who:
(a) has the right to vote at the meeting; or
(b) is the body corporate manager.
Division 3 Voting at general meeting
Subdivision 1 Voting generally
If the chairperson of a general meeting would otherwise have the right to vote at the meeting:
(a) the chairperson has the right to vote at the meeting; and
(b) if the voting on a motion that must be passed by an ordinary resolution is equal, the chairperson may cast a deciding vote in addition to a vote cast under paragraph (a).
Voting at a general meeting must be by show of hands.
(1) Following a vote on a motion at a general meeting, the chairperson of the meeting must declare the result.
(2) The declaration by the chairperson that a motion has been carried is evidence of the fact without proof of the number or proportion of votes recorded against or in favour of the motion.
Subdivision 2 Alternative method of voting
(1) A person who has the right to vote at a general meeting may appoint a proxy to vote on the person's behalf at the meeting.
(2) If 2 or more persons have the right to exercise 1 vote jointly, the persons may jointly appoint a proxy to exercise the right.
(1) If a unit owner's interest in a unit is subject to a mortgage, the mortgagee may give the body corporate written notice that:
(a) the unit is subject to the mortgage; and
(b) the mortgagee proposes to exercise voting rights under this clause.
(2) If the mortgagee gives the notice:
(a) the member does not have a right to vote in relation to the unit; and
(b) the mortgagee has the right to vote in relation to the unit.
(3) If the mortgage is discharged, the mortgagee's right to vote ends.
(4) If 2 or more persons are mortgagees of a unit as joint tenants or tenants in common:
(a) the right to give notice under subclause (1) may be exercised only by the mortgagees jointly; and
(b) the right to vote may be exercised only by the mortgagees jointly.
(5) If a unit is held by 2 or more members as tenants in common and one of the members has mortgaged the member's interest in the unit:
(a) the mortgagee may give notice to the body corporate under subclause (1); and
(b) this clause applies to the mortgagee in relation to the right to vote that the mortgagor may otherwise exercise.
(6) In this clause:
"mortgagee", if there are 2 or more mortgages, means the mortgagee under the mortgage entitled to priority over the other mortgage or mortgages.
(1) This clause applies if, for a motion that must be passed by a resolution without dissent or a unanimous resolution:
(a) a person who has the right to vote on the motion in relation to a unit:
(i) is unavailable to vote on the motion; and
(ii) has not appointed a proxy to vote on the person's behalf; or
(b) the body corporate does not know who has the right to vote in relation to a unit.
(2) The Local Court may:
(a) order that the person's right to vote may be dispensed with for the motion or permanently; or
(b) appoint another person to exercise the right to vote on the motion.
(3) The body corporate or a person who has the right to vote on the motion may apply for an order under this clause.
(1) A member of the body corporate does not have a right to vote if:
(a) the member is under the age of 18 years; or
(b) a guardian has been appointed under the Adult Guardianship Act to manage the property of the member.
(2) The right of a member mentioned in subclause (1)(a) to vote may be exercised by the member's parent or guardian.
(3) The right of a member mentioned in subclause (1)(b) to vote may be exercised by the appointed guardian.
If special rights about common property or a body corporate asset are allocated to a unit under an exclusive use by-law, the unit owner is not liable to pay maintenance and operating costs relating to the common property or asset unless the by-law specifically provides that the owner is liable.
Part 5 Financial and record management
Division 1 Annual contributions and other levies
The body corporate may, from time to time, decide:
(a) the amount of annual contributions payable by the unit owners to the body corporate; and
(b) how the contributions must be paid.
Note for clause 39
Under section 39(3) of the Act, the contribution entitlement of a unit divided by the total contribution entitlements of all the units is the ratio representing the unit owner's share of annual contributions.
Annual contributions paid by unit owners to the body corporate must be used to fund the following:
(a) the administration of the body corporate;
(b) maintenance and repairs of the common property of the scheme;
(c) the insurance policies the body corporate is required to maintain under the Act;
(d) other costs reasonably incurred by the body corporate in performing its functions under the Act.
(1) The body corporate may, by a special resolution, decide to charge unit owners a levy to fund a single item of expenditure.
(2) The following matters must also be decided by a special resolution:
(a) the amount of the levy;
(b) how the levy must be paid.
(3) The ratio representing a unit owner's share of the levy is the same as the ratio (mentioned in section 39(3) of the Act) representing the unit owner's share of annual contributions.
(1) The body corporate may, by a unanimous resolution, decide to charge unit owners a levy to fund a recurring class of expenditure.
(2) The following matters must also be decided by a unanimous resolution:
(a) the amount of the levy, or the method for calculating the amount;
(b) how the levy must be paid;
(c) each unit owner's share of the levy, or the method for calculating each owner's share.
(1) The body corporate may charge interest for the late payment of contributions and special levies.
(2) The interest rate is:
(a) an amount, decided by the body corporate, not more than the rate fixed from time to time for section 85 of the Supreme Court Act ; or
(b) if the body corporate does not decide an amount – the rate fixed from time to time for section 85 of the Supreme Court Act .
(3) The body corporate may decide to waive the interest in a particular case.
An amount owing to the body corporate by a unit owner under this Division is a debt due and payable to the body corporate.
Division 2 Body corporate assets
The body corporate may, by a resolution without dissent, mortgage or create a charge over a body corporate asset to raise funds to be used for the performance of the functions of the body corporate.
Division 3 Records and notices
(1) The body corporate must ensure the following records are kept:
(a) the full name and address of each member of the body corporate;
(b) minutes of general meetings;
(c) copies of resolutions made at general meetings;
(d) records of the results of voting on motions;
(e) copies of notices given by the body corporate;
(f) copies of appointments of proxies;
(g) used voting papers;
(h) correspondence sent or received by the body corporate;
(i) insurance policies maintained by the body corporate;
(j) contracts and agreements entered into by the body corporate;
(k) leases and licences entered into by the body corporate.
(2) The body corporate must ensure each record is kept for at least 7 years after the date it is created.
An application to access a record kept by the body corporate or specified information contained in the record must:
(a) be in writing; and
(b) contain adequate details for the body corporate to identify the record or information.
If an event specified in the Table, column 1, happens in relation to the scheme, the person specified opposite in column 2 must give written notice of the event to the body corporate within 28 working days after the event.
Table
|
Column 1 Event |
Column 2 Person to give notice |
|
Transfer of unit ownership |
Unit owner immediately after transfer |
|
Change of unit owner's address or contact details |
Unit owner |
|
Registration of lease over unit for term of over 6 months |
Unit owner |
|
Mortgagee enters into possession of unit that is subject to registered mortgage |
Mortgagee |
Division 1 Seal of body corporate
(1) The seal of the body corporate must include the name of the body corporate.
(2) The body corporate may decide how the seal must be kept.
The seal must not be used except for a purpose authorised by the body corporate.
(1) The use of the seal on a document must be witnessed by at least 2 members of the body corporate.
(2) However, if there is only 1 member of the body corporate, the use of the seal must be witnessed by the member.
(3) If a member is a company, a director of the company may witness the use of the seal on behalf of the company.
(4) Each person who witnesses the use of the seal must record next to the seal that he or she has witnessed the use of the seal by:
(a) signing his or her name; and
(b) printing his or her name and address; and
(c) stating that he or she is a member of the body corporate or a director of a company that is a member of the body corporate.
Division 2 Administration of scheme
The body corporate may engage or employ a person to assist it in exercising its powers and performing its functions.
If the document engaging a body corporate manager does not specify how the engagement may be terminated, the body corporate may terminate the engagement by giving 3 months written notice to the body corporate manager.
The body corporate manager has the functions and powers of the body corporate or committee delegated to the manager.
Note for clause 54
Chapter 3, Part 3.4 of the Act provides for the engagement of a body corporate manager.
Division 3 Delegation of functions and powers
(1) A delegation of the functions and powers of the body corporate must be:
(a) authorised by an ordinary resolution of the body corporate; and
(b) evidenced in a document affixed with the seal of the body corporate.
(2) A copy of the document evidencing the delegation must be given to the delegate.
(3) The delegation may be revoked in the same way it is made.
The committee may, in writing, delegate any of its functions or powers under this management module to:
(a) a committee member; or
(b) a member of the body corporate; or
(c) the body corporate manager.