This article and Q&A about recording strata meetings in NSW has been supplied by Yuhao Gu, Omega Legal.
Table of Contents:
- QUESTION: Are we able to record general meetings because we feel there has been dishonesty? There are statements made at our general meetings that are later denied by the parties at the meeting.
- ARTICLE: Is it legal to record a strata committee meeting?
Question: Are we able to record general meetings because we feel there has been dishonesty? There are statements made at our general meetings that are later denied by the parties at the meeting.
Are we able to record general meetings because we feel there has been dishonesty?
We are in a block of 5 units and 3 people in the one family are executive committee and are refusing to allow us, the other 2 committee members, to record the meetings.
We believe it is vital to record the meetings because there are statements made that are later denied by the parties at the meeting including statements made by the Strata Manager.
Answer: You could consider a new by-law that allows strata meetings to be recorded by a participant for a meeting.
You could consider a new by-law that allows strata meetings to be recorded by a participant for a meeting. However, this would require a special majority vote which may not be achievable without enough support from other owners.
If this option is not possible, then it would be best practice to take notes during a strata committee meeting on what was discussed, actions that were agreed and rely on these notes to raise any comments to the minutes that are sent to the strata committee for review before they are distributed to other owners.
Yuhao Gu
Omega Legal
E: [email protected]
P: 0402 990 108
This post appears in Strata News #352.
ARTICLE: Is it legal to record a strata committee meeting?
What is a private conversation?
A “private conversation” is defined in the Act as words spoken by one person to another “in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only” by themselves, or by a person with consent of all the parties to the conversation.
Is a strata committee meeting a “private conversation”?
It is arguable whether a strata committee meeting can be considered a “private conversation”, given the attendees are generally limited to the elected strata committee members and the managing agent. On the other hand, given it is a meeting that is convened to discuss matters including financial and legal issues of the owners corporation which concerns all owners not just those present in the meeting, and that all owners or their nominees are free to attend a strata meeting may lack the necessary degree of “privacy” for it to be considered a private conversation. Further, a committee meeting may be held in a public area rather than in an enclosed office environment and that meeting minutes are generally produced to record the meeting which are in turn usually available for inspection.
On balance, one would err on the side of caution and treat a strata committee meeting as a private conversation, although it may very well be possible that depending on the particular circumstances, some strata committee meetings are not private conversations.
What if the private conversation is recorded to protect one’s legal interests?
Aside from certain operations involving law enforcement officers, there is one main exception to when a recording of a private conversation can be used, without the consent of all parties to the conversation.
The Act allows for a “private conversation” to be used in circumstances where a principal party to the conversation (being a person by whom words are spoken and can be the person using the recording device) consents to the recording, and where “it is reasonably necessary for the protection of the lawful interest of that party”.
Therefore if you need to rely on a recording of a strata committee meeting despite it was obtained improperly then you will need to demonstrate that your recording was necessary to protect your lawful interests. However what constitutes a valid exception to the rule will depend on the facts of each case, not simply because you want to use it against the person you are recording.
What to do if you intend to record a strata committee meeting:
It is best that you obtain the consent to record from everyone who attends the meeting. Further, you could propose a motion to have a new by-law that allows all meetings to be recorded to ensure the accuracy of meeting minutes. How do you change a bylaw? You will need a special majority resolution for proposing a new by-law or changing an existing by-law.
Yuhao Gu
Omega Legal
E: [email protected]
P: 0402 990 108
This post appears in Strata News #304.
Have a question about recording a strata meeting in NSW or something to add to the article? Leave a comment below.
Read next:
- NSW: Pre-Meeting Electronic Voting – When (and When Not) to Use it
- NSW: Q&A Can we hold Electronic Meetings and have Electronic Voting?
Are you interested in more information about recording strata meetings or other strata information particular to NSW? Visit Strata Committee Concerns OR NSW Strata Legislation
Looking for strata information concerning your state? For state-specific strata information, try here.
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” I mean to ‘say’…sheesh! Someone needs to tell this ‘ham of a thespian thingy and many of its supporting sinecurist staff’, which we sometimes call ‘the law’, *ex_actly* where to get off…i.e., *off_stage*.”
And scene.
Well said.
There is nothing private about a conversation at a SC meeting as the people present are intended to represent the owners corporation – which includes every single owner, who may or may not be able to be present. Non present owners are as entitled to hear a true record of the meeting as those who are present and able hear it with their own ears. These absent owners rely on the accuracy of records of the conversation. The most accurate record of these conversation would be a recording.
The 2015 strata reform had about 90 or so changes to the Act.
I solely or concurrently lobbied for 16 or more of those changes.
My point is it seems some people feel strata meetings should be recorded.
I am one of them.
I suggest lobbying Macquarie St to include in the SSM Act an exemption for strata meetings from the relevant sections of the SD Act
Recording may not be allowed or need majority consent but what about taking notes by an invited Proxy ( Lawyer ) same way a the Chairperson / Secretary of the AGM take minutes to conduct the meeting. In a legal arena, meeting minutes are presumed to be correct and can be used as legal evidence of the facts they report. If these minutes differs greatly from the Proxy’s ( Lawyer ) notes – the State Strata Body needs to decide who to trust.
Luther
The not overly competent police prosecutors in Lismore feel strata meetings are public and did not pursue a rogue SC member who recorded audio of a strata records search. The search was considered to be a meeting and a meeting considered to be public. As I said – not overly competent.
Case law says meetings are private.
That aside; here we go again with another misuse of by-laws, once again at the suggestion of a ‘strata brief’.
Dixon CJ, Williams, Webb & Fullagar JJ
“… such a power (to make regulations) will not support attempts to widen the purpose of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislation has adopted to attain its ends …
… the objection is that the regulation is an attempt not to compliment but to supplement the plan of the legislation … it is not confined to the same field of operation as the provisions of the Act”
Shanahan v Scott (1957) 96 CLR 245 High Court of Australia
I am surprised this view has not been wheeled out more often to deal with empowering by-laws and by-laws that boldly take strata law where it should not be going.
Having a record of what was said is not protecting a legal interest. You will find that in the Alliance v Quasar case cited in an earlier post. ‘Need a recording in case of litigation’ is also no excuse; same case.
There is no way a by-law can over-ride a persons entitlement under the SD Act – you either get everyone’s permission to record or you don’t record.
If you are desperate then take a recorder and say into to it everything that gets said without actually recording anybody else. I know one Secretary who does that because the agent is a little rogue.
What happens when we asked to record general meetings because there has been dishonesty.
We are in a block of 5 and 3 people in the one family are executive committee and are refusing to allow us the other 2 committee members to record the meetings..
We believe it is vital to record the meetings because there are statements made that are later denied by the parties at the meeting including the Strata Managers .
Hi Mary,
We have responded to your question in the article above.
But your response was a non-answer to the question posed.
How about an ANSWER?
SD Act dictionary:
private conversation means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:
(a) by themselves, or
(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,
but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.
So there is nothing private about a conversation at a SC meeting as it is intended to be heard by all present.
The issue is then s 7 of the SD Act.
35. It is clear that the nature of the communications which take place at the meetings are of a confidential nature and are private in the sense that they are “not public”.
ALLIANCE CRATON EXPLORER PTY LTD v QUASAR RESOURCES LTD [2010] SASC 266 (27 August 2010)