Who Is Responsible For Financial Losses - Trustees Or Managing Agent?
Category Legal Thought of the Week
If a body corporate member suffers a financial loss due to, for example, an averaged or refuted claim as a result of under-insurance of the buildings in the scheme, the owner is likely to seek alternative ways to recover the shortfall.
By law, trustees are the elected representatives of the body of owners in a sectional title scheme and they are entrusted to attend to the scheme's financial and maintenance management, setting up funds for upkeep, record-keeping, and promoting an understanding of the rules amongst owners, in good faith and with the scheme's best interest in mind. The duties they perform are prescribed by law and binding on them to the extent that they are placed in a fiduciary position vis-à-vis the body of owners. This implies a high level of responsibility and accountability. In the above scenario, it might open trustees to claims if they did not perform their duties in the way required.
Does this change when the trustees appoint a managing agent to assist in the performance of their management and administrative tasks? No! The primary fiduciary responsibility remains with the trustees.
The duties of the managing agent is generally set out in a service agreement entered between the trustees and the managing agent and any duty not tasked to the managing agent remains with the trustees. In addition, whilst the managing agent must act in good faith at all times, it remains the trustees' responsibility to liaise closely with the managing agent to make sure all tasks are properly attended to.