Part 9 Strata managers

(1) A strata company may, subject to this Part, authorise a person (a strata manager) to perform a specified scheme function.

(2) An authorisation under this section —

(a) is subject to any conditions specified by the strata company; and

(b) may be varied or revoked by the strata company.

(3) If the performance of a function of a strata company requires a unanimous resolution, resolution without dissent, special resolution or ordinary resolution, the strata manager may perform the function only if a vote has been taken on a proposed resolution and it has been passed as a resolution of the relevant kind.

(4) A legal practitioner does not act as a strata manager in providing services that can, under the Legal Profession Uniform Law (WA), be provided only by a legal practitioner.

(5) A strata manager cannot be authorised to perform any of the following functions —

(a) authorising a person to perform a scheme function other than as an agent, employee or contractor of the strata manager;

(b) determining contributions;

(c) entering into a contract with another strata manager, varying, extending or terminating such a contract or making a decision relating to such a contract or the meaning of such a contract;

(d) terminating a contract for services or amenities under section 115;

(e) commencing proceedings on behalf of the strata company in the Tribunal or in a court or other tribunal;

(f) authorising the strata company’s common seal to be applied to a document;

(g) authorising a person to sign documents on behalf of the strata company or on behalf of the council or an officer of the strata company;

(h) a scheme function declared by the regulations to be a scheme function that may not be performed by a strata manager.

(6) An act or thing done by a person under an authorisation under this section —

(a) has effect as if it were done by the strata company, council or officer of the strata company (as the case requires); and

(b) is taken to have been done by the strata company, council or officer of the strata company (as the case requires).

(7) The authority of a strata manager to perform a scheme function does not prevent the function from being performed by the strata company, council or officer (as the case requires).

(8) However, if the strata company, council or officer performs such a function, the strata company, council or officer must notify the strata manager authorised to perform the function of that fact.

(1) Despite an authorisation under section 143, a person is not authorised to perform functions as a strata manager unless —

(a) a contract or volunteer agreement (a strata management contract) is in force between the strata manager and the strata company; and

(b) the requirements of the regulations are met by the strata manager and each agent, employee or contractor of the strata manager for —

(i) the conduct of, and verification of the conduct of, criminal record checks; and

(ii) educational or other qualifications; and

(iii) any other matter relevant to the performance of functions as a strata manager;

and

(c) the strata manager maintains professional indemnity insurance as required by the regulations.

(2) Subsection (1)(c) does not apply to a volunteer strata manager.

(3) The regulations cannot require a volunteer strata manager to have particular educational or other qualifications.

(1) A strata management contract must be in writing and must —

(a) state the strata manager’s name and address for service; and

(b) state the strata company’s name and address for service; and

(c) state the Australian Company Number or Australian Business Number of each party with such a number; and

(d) specify when the contract starts and ends; and

(e) specify each scheme function to be performed by the strata manager under the contract; and

(f) specify any conditions that are to apply to the performance of the functions; and

(g) provide that the strata manager must give the strata company written reports about the strata manager’s performance of functions under the contract and set out the reporting requirements as to content and timing of the reports; and

(h) specify the remuneration that is payable under the contract or the manner in which the remuneration that is payable under the contract is to be calculated; and

(i) specify the accounts to be used under section 148(1); and

(j) set out the text of, or give notice drawing attention to, section 151; and

(k) provide for any other matter that is required by the regulations.

(2) Before entering into a strata management contract, the strata manager must disclose in writing to the strata company —

(a) any direct or indirect pecuniary or other interest that the strata manager has that conflicts or may conflict with the performance of the strata manager’s functions; and

(b) the amount or value of any remuneration or other benefit that the strata manager has a reasonable expectation of receiving (other than from the strata company) in connection with the performance of the strata manager’s functions.

(3) Any variation to, or extension or renewal of, a strata management contract must be in writing.

(4) This section does not limit the matters that may be included in a strata management contract.

(5) If the strata management contract is a volunteer agreement with a volunteer strata manager, it need not comply with subsection (1)(c) or (g).

(1) A strata manager of a strata company —

(a) must at all times act honestly and in good faith in the performance of the strata manager’s functions; and

(b) must at all times exercise a reasonable degree of skill, care and diligence in the performance of the strata manager’s functions; and

(c) must have a good working knowledge of this Act; and

(d) must not make improper use of information acquired as the strata company’s strata manager —

(i) to gain, directly or indirectly, an advantage for the strata manager or any other person; or

(ii) to cause detriment to the strata company or a member of the strata company;

and

(e) must not make improper use of the position of strata manager —

(i) to gain, directly or indirectly, an advantage for the strata manager or any other person; or

(ii) to cause detriment to the strata company or a member of the strata company;

and

(f) must take reasonable steps to ensure that the strata manager’s agents, employees and contractors comply with this Act when performing the strata manager’s functions.

(2) A strata manager of a strata company —

(a) must inform the strata company in writing of any direct or indirect pecuniary or other interest that the strata manager has that conflicts or may conflict with the performance of the strata manager’s functions; and

(b) must do so as soon as is practicable after the strata manager becomes aware of the relevant facts.

(1) A strata manager of a strata company —

(a) must inform the strata company in writing of the amount or value of any remuneration or other benefit that the strata manager receives, or has a reasonable expectation of receiving (other than from the strata company) in connection with the performance of the strata manager’s functions; and

(b) must do so as soon as is practicable after the strata manager becomes aware of the relevant facts.

(2) Subsection (1) does not apply to remuneration or any other benefit that is less than an amount or value specified in or calculated in accordance with the regulations.

(1) A strata manager (other than a volunteer strata manager) must pay all money received on behalf of a strata company into 1 of the following accounts —

(a) a separate ADI trust account for the strata company;

(b) a pooled ADI trust account solely for the strata companies for which the person is a strata manager;

(c) if the strata company has its own ADI account and has authorised the strata manager to use the account, that account.

(2) If a strata company has a volunteer strata manager, the strata company must have an ADI account and the volunteer strata manager must pay all money received on behalf of a strata company into an ADI account of the strata company.

(3) A strata manager must be able to account separately for money that the strata manager is paid or receives on behalf of a strata company.

(4) A strata manager may pay out of an account mentioned in subsection (1) an amount that is payable by the strata company on whose behalf money is received.

(5) Money paid into a trust account is not available for the payment of the debt of any creditor of the strata manager and cannot be attached or taken in execution under an order or process of any court at the instance of a creditor of the strata manager.

(6) The regulations may provide for other matters relating to the operation of trust accounts by strata managers.

(1) A strata company can, by written notice, require a strata manager to provide the following information to the strata company —

(a) the name and number of each account operated by the strata manager in performing scheme functions and the name and identifying number or code of the ADI with which each account is held;

(b) the balance in each such account standing to the credit of the strata company on a specified date;

(c) particulars of cheques drawn or amounts transferred out of an account by the strata manager on behalf of the strata company but for which amounts have not, as at a specified date, been paid out of the account;

(d) particulars relating to the payment of money to, or the receipt of money by, the strata manager on behalf of the strata company;

(e) particulars relating to the manner and time of disposal of money paid to, or received by, the strata manager on behalf of the strata company that is not still held by the strata manager;

(f) particulars relating to a specified transaction that has been entered into by the strata manager on behalf of the strata company.

(2) The strata manager must comply with the notice within a reasonable time but, in any event, within 7 days after the day the notice was given.

(3) However, a strata manager does not have to provide the strata company with information in relation to a matter as it was, or that occurred, more than 7 years before notice requiring the information is given.

(1) A strata manager who operates an account in performing scheme functions must, if the strata company has an auditor, give the auditor access to statements of the account, or otherwise authorise the auditor’s access to statements of the account, if required by the auditor to do so.

(2) A strata manager of a strata company must provide such an auditor with —

(a) any document in the strata manager’s possession or control relating to money paid to, or received by, the strata manager on behalf of the strata company that the auditor reasonably requires; and

(b) any other information relating to money paid to, or received by, the strata manager on behalf of the strata company that the auditor reasonably requires.

(1) There are proper grounds for termination of a strata management contract by a strata company if —

(a) the strata manager has contravened this Act; or

(b) the strata manager has contravened the contract; or

(c) the strata manager is, according to the Interpretation Act 1984 section 13D, a bankrupt or a person whose affairs are under insolvency laws; or

(d) the strata manager is a Chapter 5 body corporate within the meaning given in the Corporations Act 2001 (Commonwealth) section 9; or

(e) the strata manager, or a director or chief executive officer of the strata manager, is convicted in this State of an offence punishable by imprisonment for 12 months or longer and the strata company is satisfied that the offence affects the strata manager’s suitability to perform the strata manager’s functions; or

(f) the strata manager, or a director or chief executive officer of the strata manager, is convicted outside this State, in Australia or elsewhere, of an offence that, if it had been committed in this State, would be punishable by imprisonment for 12 months or longer and the strata company is satisfied that the offence affects the strata manager’s suitability to perform the strata manager’s functions.

(2) If a strata company is satisfied that there are proper grounds for termination of a strata management contract, the strata company may terminate the contract by giving the strata manager written notice of termination —

(a) specifying the date (being not less than 28 days after the date of the notice) on which the termination will take effect; and

(b) informing the strata manager of the right to apply to the Tribunal for review of the decision to terminate the contract.

(3) Before a strata company terminates a strata management contract under subsection (2), the strata company must give the strata manager a notice (a show cause notice).

(4) A show cause notice must —

(a) be in writing; and

(b) state that the strata company proposes to terminate the strata management contract; and

(c) specify the grounds on which it is proposed to terminate the strata management contract; and

(d) set out particulars of the facts relied on as evidence of those grounds; and

(e) invite the strata manager to make written submissions to the strata company as to why the strata management contract should not be terminated; and

(f) specify the period (being at least 14 days after the date of the notice) within which the written submissions must be received by the strata company.

(5) A strata company must give proper consideration to any written submissions made by the strata manager within the period specified in the show cause notice.

(6) Nothing in this section affects the operation of section 115 in relation to a strata management contract or any other right that the strata company may have to terminate the contract.

(1) If a strata management contract is terminated, the strata manager must return to the strata company —

(a) all records of the strata company, including records of account, in the strata manager’s possession or control; and

(b) all keys and other property of the strata company in the strata manager’s possession or control.

(2) The property must be returned to the strata company within 28 days after the day on which the contract is terminated (even if the strata manager has made an application for review of the decision to terminate the contract).

(3) The strata company may agree to the property being made available for collection by another strata manager engaged by the strata company or being returned in some other manner.

(4) A strata manager cannot exercise any claim or lien against or on the property of a strata company that the strata manager is required, under this section, to return to the strata company.

The regulations may require a strata manager (other than a volunteer strata manager) to lodge a periodic return at the office of the Authority containing aggregated information about strata titles schemes managed by the strata manager (being information ordinarily kept by a strata manager and readily available) for the purposes of the Authority —

(a) publishing, if it chooses to do so, a list of strata managers; and

(b) using the information to develop policy and advise the Minister on matters related to strata managers.

(1) A contract or arrangement is of no effect to the extent that it purports to exclude or restrict the operation of this Part.

(2) A purported waiver of a right, remedy or benefit conferred on a person under this Part is of no effect.

(1) No civil liability attaches to a volunteer strata manager for anything that the person has, in good faith, done or omitted to be done —

(a) in the performance of a function under this Act or scheme by-laws; or

(b) in the reasonable belief that the act or omission was in the performance of a function under this Act or scheme by-laws.

(2) A liability that would, but for subsection (1), attach to a person attaches instead to the strata company.