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Operation of the Residents' Association

 

The Committee

 

  1. Role of the Committee. The Committee is responsible for the management of the affairs of the Residents Association.

    • Membership of the Committee. The Committee (collectively called "Committee Members") shall consist of:

      • a chairperson (who will be chosen from the general Committee members subject to rule 17.3.2) and;

      • A minimum of five and a maximum of nine general Committee members, as determined by the Association in general meeting. The Committee has the ability to co-opt members to the Committee should the Committee believe there is a requirement.

  2. Powers. The administration of the Association will be vested in the Association in general meeting, and will be delegated to the Principal Member until the end of the Development Period and, following that, will be vested in the Committee in accordance with this rule 17. The Committee may exercise all of the powers, authority and discretions of the Association as permitted under this Constitution and do on its behalf all acts as it deems necessary or expedient. The powers, authority and discretions as exercised by the Committee are subject always to any limits which may from time to time be imposed by the  Association.  The Committee may delegate any one or more of its powers to a sub-committee of Committee members, a Committee member, the Manager or any other person(s). In exercising the Committee's delegated powers, any delegate must comply with any directions that the Committee may impose.

  3. Election of Committee Members

    • Nominations for Committee members shall be received by the Manager (30) thirty days prior to the date set for the annual general meeting and shall be promptly circulated to Members. Nominations must be submitted on the prescribed form and shall contain the nominee's signature by way of consent. In the event of there being insufficient or no nominations for the positions, nominations from the floor shall be accepted by the meeting, provided any person whose nomination has been submitted in writing for any of the Committee positions shall automatically be elected to that position.

    • The elected Committee shall, at its first meeting following each Annual General Meeting, elect a Chairperson of the Committee from within the elected Committee Members.

    • The term of office for all Committee Members shall be two (2) years, expiring at the conclusion of the relevant Annual General Meeting. Any Committee Member may be re-elected to the Committee for a maximum of two (2) subsequent and the consecutive term of office.

    • The terms of office for Committee Members elected or appointed in 2014 shall be between one (1) and two (2) years so as to ensure the rotation of Committee Members. The terms of office shall be determined by agreement of the Committee and failing such agreement by the vote of the Committee. Thereafter the terms of office of Committee Members shall be for two (2) years.

    • The retirement of any Committee member can at any time supersede rule 17.3.4 from the date of the written resignation from the Committee is received by the Chairperson.

  4. Rights of Committee Members. All Committee Members shall have the right to attend, speak and vote at all Committee meetings.

  5. Vacancies on the Committee. Any vacancy in the Committee, which occurs during any Committee Member's term of office, may be filled by the Committee.

  6. Removal of Committee Member. The Residents Association in a special general meeting, called for this purpose, may by resolution remove any Committee Member, before the expiration of their term of office. The vacancy caused by such removal will be filled in accordance with  Rule 17.5. Notification of the special general meeting shall be given to the Committee Member affected by the proposed resolution, and she or he shall be given the opportunity prior to, and at, the special general meeting, to make submissions in writing and/or verbally to the Members about the proposed resolution.

  7. Chairperson. Subject to rule 17.3, the Committee from time to time will appoint, remove and replace a chairperson for such term as it sees fit from one of their number to chair Committee meetings and otherwise exercises the powers of the Chairperson set out in this Constitution.

  8. The quorum for Committee Meetings. Where a majority of the Committee Members are present at a Committee Meeting, this will constitute a quorum.

  9. Voting. Resolutions of the Committee will be passed by the majority.  Each  Committee member will be entitled to exercise one vote. Notwithstanding any contrary provision in this Constitution, a resolution in writing signed by all of the Committee members will be as valid and effectual as if it had been passed at a meeting of the Committee duly convened and constituted.

  10. Casting a vote. Subject to rule 17.9 in the case of an equality of votes the Chairperson may exercise a casting vote.

  11. Seal. The Committee will obtain a common seal for the use of the Association and will provide for its safe custody. The common seal will not be used except by resolution of the Committee. Every instrument to which the common seal is affixed will be signed by any two members of the Committee.

  12. Powers of the Committee. The Committee shall have the power to:

    • develop and implement strategies, policies and procedures for the administration, promotion and development of the Kensington Park Residents Association;

    • establish and delegate such powers as it considers appropriate, such other commissions, committees and groups as it considers appropriate to assist it to carry out its responsibilities;

    • co-opt, engage, contract or otherwise agree to obtain the assistance or advice of any person or organisation for the Committee;

    • appoint a General Manager/ Chief Executive Officer I Contracted Management Company, and such appointment may be on such terms and conditions as the Committee may determine.

      • Where such an appointment will be made through an open and transparent selection process.entity is a commercial operation, then such

      • Where such a person is appointed that person/company shall be an ex officio member of the Committee but shall possess no power of voting;

    • publish the rules for the Residents Association;

    • subject to this Constitution, fill vacancies of the Committee, any commissions, committees and other groups which are established by it.

 

Meetings of the Committee:

  1.  

    • The Committee shall meet at such places and times, and in such manner, as it shall determine.

    • The Chairperson shall chair Committee meetings, or in his/her absence any other Committee Member determined by the Committee.

    • A resolution in writing, signed or assented to by facsimile, or another form of visible or other electronic communication by all the Committee Members shall be as valid and effectual as if it had been passed at a meeting of Committee Members. Any such resolution may consist of several documents in like form each signed by one or more Committee Members.

    • A meeting of the Committee may be held where one or more of the Committee Members are not physically present at the meeting, provided that:

      • all persons participating in the meeting are able to communicate with each other effectively simultaneously and instantaneously whether by means of telephone or another form of communication;

      • notice of the meeting is given to all the Committee Members in accordance with the procedures agreed from time to time by the Committee, and such notice specifies that Committee Members are not required to be present in person at the meeting;

      • If a failure in communications prevents rule 17.13.4.1 from being satisfied and such failure results in the quorum not being met, the meeting shall be suspended. If communication is not re-established within 15 minutes from the interruption, the meeting shall be deemed to have terminated or adjourned.

  2. Committee Minutes and Records:

The Committee will cause proper minutes to be kept of the proceedings of all meetings of the Association and of the Committee. All business transacted at such meetings signed by the Chairperson will be accepted as a correct and accurate record of the business transacted at such meetings without any further proof of the facts contained in such minutes.

 

The Design Review Board

 

  1. Composition. The Design Review Board will comprise the Principal Member and, after the resignation of the Principal Members, the following persons:

    • Three (3) representatives of the Association appointed by the Committee;

    • Additional representatives may be co-opted by the Committee from time to time;

    • A landscape architect with appropriate qualifications and expertise appointed from time lo time by the representative of the Association subject to approval by the Committee;

    • An architect appointed from time to time by the representative(s) of the Association subject to approval by the Committee.

  2. Design Controls. The Design Review Board may revise and publish from time to time the Design Controls in respect of any home, commercial premises or other development within Kensington Park. Each Member is to fully comply with the Design Controls and any other rule relevant to design control.

  3. Design approval. Members are to familiarise themselves with the Design Controls before commencing any alteration, addition or modification in any building or other structure within Kensington Park. This includes, but is not limited to, the appearance of a building and immediate surroundings as laid out in the Design Controls including:

    • window treatments, or

    • colour, or

    • gardens, decks, fences, or

    • ornaments and sculptures.

  4. The Member must first submit the design for the proposed work to the Design Review Board for written approval in accordance with the Design Controls. The Design Review Board may refuse plans which, in its reasonable opinion, do not comply with the Design Controls.

  5. Before commencing any alteration, addition or modification to any building or other structure (including fencing, garden features) within Kensington Park, the Member must first submit the design for the proposed work to the Design Review Board for its written approval in accordance with the Design Controls. The Design Review Board may refuse any plans which, in its reasonable opinion, do not comply with the Design Controls.

  6. Approval costs.  All costs of the design approval process will be met by the  Design  Review  Board unless the Design  Review  Board considers,  in its  sole  discretion, that  negotiation relating to disputed designs is in wide variation to the Design Controls in the event of which the Member seeking approval will pay the Design Review Board the hourly rate equivalent to an arm's length architect's fee to consult and make recommendations to make such design compliant.

 

Principal Member

 

  1. Principal Member. Until Kensington Park is fully completed and while the Principal Member is in office in accordance with rule 8.1:

    • The full government and control of the Association will be  vested  in  the  Principal Member, which may exercise all the powers, authorities and discretions vested in the Committee and in addition, may exercise all the powers of the Association  which are not   by statute required to be exercised by the Association in general meeting;

    • The Principal Member will be entitled to exercise the number of votes equal to one   more than the number of Members voting in person or by proxy at any meeting of the Association and, for the avoidance of doubt but subject to rule 23.3, this right may without limitation be exercised on any matters requiring a Special Resolution;

    • Any minute entered in the minute book of the Association's proceedings signed by the Principal Member will, in any matter not expressly required by the statute to be done by  the Association in general meeting, have the effect of a resolution of the Association;

    • The Committee will be under the control of the Principal Member, whose opinion will prevail in the event of any difference of opinion, and they will be bound to conform to the Principal Member's directions in regard to the Association's business. For the avoidance of doubt, the Committee will act in an advisory role to the Principal Member to enable the Principal Member to form its opinions and make decisions under this rule.

  2. Effect on Meeting. Notwithstanding anything contained or implied in this Constitution:

    • So long as the Principal Member is in office, no resolution that is passed by the Association in general meeting or by the Committee will have any force unless the resolution is in writing and signed by the Principal Member; and

    • So long as the Principal Member is in office, it is not necessary to hold the formal meetings of the Committee, but any resolution signed by the  Principal Member  will be as valid and effectual as if it were a resolution unanimously passed  at any meeting  of the Committee

  3. Right to Convene General Meetings. The Principal Member may at any time convene upon such notice as he/she/it thinks fit a general meeting of the Association and, to the extent permissible by law, may regulate all proceedings at such meetings and from time to time determine the quorum for any meeting whether of Members or of the  Committee, notwithstanding anything to the contrary to this Constitution.

  4. Principal Member Provisions Paramount. This Constitution in so far as it relates to the proceedings and powers of the Committee and/or the Association will in all respects be read subject to the provisions relating to the Principal Member in this rule 19. Should there be any inconsistency or contradiction, the provisions relating to the Principal Member in this rule, 19 will be paramount.

 

Manager

 

  1. Duties. Subject to rule 17.12.4,2, the Committee will appoint, remove and replace a Manager from time to time to carry out such of the obligations of the Association and exercise such of the discretions and powers of the Association, as the Committee sees fit. Such appointment will be for the term, at the remuneration and on such terms and conditions as the Committee may agree with the Manager.

  2. Rights and responsibilities. The appointed Manager will enter into a contract with the Association to provide management and other services to the Members (amongst other things);

    • the appointment and management of landscaping contractors to maintain Kensington Park;

    • management of the security arrangements for Kensington Park and employment of relevant contractors (if necessary);

    • the monitoring and enforcement of the Bylaws, including the control of the behaviour of Residents and visitors to Kensington Park to a level, generally deemed acceptable by a majority of Members;

    • coordination of rubbish collections for Kensington Park;

    • coordination of minor repairs/maintenance with subcontractors;

    • management of the provision of external services to a Property (e.g. gas, electricity, water, sewer, telecommunications, fibre optics);

    • the bulk purchase of utility services for Kensington Park;

    • operation and maintenance of an 'intranet' for communications between Members of Kensington Park;

    • management of a booking system (if required) for any Common Facilities;

    • maintenance of the cleanliness of all Common Facilities through the employment of external contractors;

    • Co-Operate with the Rental Agencies within Kensington Park.

    • Co-Operate with the Principal Member;

    • convene general meetings when requested to do so in accordance with this Constitution;

    • attend all meetings of the Committee and have full speaking rights at such meetings;

    • give all notices required to be given by these rules or as directed from time to time by the Association or the Committee;

    • keep minutes at all general meetings and Committee meetings and enter into the minute book:

      • the time, date and venue of such meeting;

      • all business considered and resolutions passed at such meeting;

    • hold in safe custody the common seal of the Association;

    • receive, and issue receipts for, all annual and special levies, additional fees and any other moneys paid to the Association;

    • operate and maintain a current bank account in the name of the Association;

    • pay all accounts properly incurred by or on behalf of the Association;

    • report immediately to the Association any Member who fails to pay special levies or additional fees within the prescribed period;

    • keep all financial records and any security documents in safe custody;

    • compile all proper accounting records from time to time as required by the Act or by the Committee which gives a true, fair and complete account of the financial affairs and transactions of the Association; and

    • compile the financial statements immediately following each Financial Year as required by the Act, and provide for the auditing of those records and the distribution of the audited financial statements to Members as soon as is reasonably practicable after each audit is completed and, in any event, no later than five (5) months of the end of the Financial Year.

  3. Changes to Scope of Services. The scope of services supplied by the Manager may be altered by the Committee in a fair and equitable manner. Should the scope of services be materially altered, the management fee for the affected Properties will be adjusted, up or down, in a fair and equitable manner. Likewise, the scope of services offered by the Manager may be varied with the approval of the Committee.

  4. Reporting. The Manager must report on a regular basis to the Committee.

 

General Meetings

 

  1. Annual General Meeting.: In addition to any other meetings in that year, the Association will hold an Annual General Meeting each year. Not more than 15 months will elapse between the date of one Annual General Meeting and that of the next. The Committee will determine the time and place of each year's Annual General Meeting.

  2. Special General Meetings. A general meeting other than an Annual General Meeting may be requested by the Committee, or by written requisitions signed by not less than 25% of the Members, or by written notice of the Principal Member (if there is one). The Chairperson of the Committee will call a special general meeting within 15 Working Days of receiving an effective request.

  3. Powers of the Association in general meeting. The Association in general meeting may, by resolution, exercise all powers, authorities and discretions of the Association notwithstanding  that any such power, authority and discretion may have been delegated to the Committee by or pursuant to this Constitution. Notwithstanding any contrary provision in this Constitution, a resolution in writing signed by 75% of the Members entitled to vote in person or by proxy at general meetings together with the Principal Member (if there is one), will be as valid and effectual as if it had been passed at a general meeting of the Association duly convened and constituted.

  4. Quorum. No business will be transacted at any general meeting of the Association unless the quorum is present when a meeting proceeds to business. Quorums will be not less than 20% of all Members or 10 Members (whichever is the lesser) eligible to vote at general meetings, present in person or by proxy and the Principal Member (if there is one).

  5. Notice of General Meeting. A notice of general meeting of the Association will be sent to every Member not less than 10 Working Days before the date of such meeting. Such notice will specify the date, time and venue of such meeting. In the case of a general meeting, other than an Annual General Meeting, such notice will specify all business and all notices of motions to be considered at such meeting. No business or notice of motion which is not specified will be discussed or transacted at such meeting.

  6. A notice of the Annual General Meeting (AGM) of the Association will be sent to every Member not less than 40 Working Days before the date of such meeting. Such notice will specify the date, Notice of Annual General Meeting. lime and venue of such meeting. At such time of notification, Members will be invited to submit items in writing for discussion at the meeting within ten working days of meeting notification. An agenda and associated business documents will be made available ten working days before the Annual General Meeting. No business or notice of motion which is not specified will be discussed or transacted at the notified AGM.

  7. Failure to give notice. The accidental omission to give notice to any member, or the non

  1. •  receipt of such notice, by any Member, will not invalidate the proceedings at any such meeting.

  2. The Chairperson. The chairperson at any general meeting will be:

    • the chairperson of the Association; or

    • if the chairperson is not present or is unwilling to take the chair, then those Committee members who are present may choose one of their numbers to chair the meeting; or

    • if for any reason no chairperson is selected by the Committee, any Member appointed by a majority of Members present in person or by proxy.

  3. Adjournment. If a quorum is not present within half an hour from the time appointed for the holding of a general meeting convened on the requisition of Members, the meeting will be dissolved. In any other case, the meeting will stand adjourned to the same day in the next week, at the same lime and place, or to such other day and such other time and place as the Committee will determine (such date not to be later than 14 days from the date of the adjourned meeting). If at such adjourned meeting a quorum is not present within half an hour from the lime appointed for holding the meeting, the Members present together with the Principal Member (if there is one) will constitute a quorum.

  4. Adjourned Meetings: No business other than that business which might have been transacted at the meeting from which the adjournment took place, will be transacted at any adjourned meeting. Members will not be entitled to receive any notice in respect of adjourned meetings.

 

Voting

 

  1. One Member One Vote. Each Member present at a general meeting of the Association (not at that time being in breach of the Constitution) will be entitled to one vote for each Property of which that Member is a registered proprietor, which may be exercised either in person or by proxy. Where there is more than one Owner in respect of a Property, and such Owners are collectively a Member pursuant to rule 7.1.4 only one such Owner will be entitled to vote. In the absence of agreement between such Owners as to who will exercise this vote, the Owner appearing first on the certificate of title to the Property will be entitled to exercise the vote. On the death of any Member, and pending the transfer of the Member's Property, the executor of that Member's estate will be entitled to exercise that Member's vote.

  2. Any corporation which is a Member may, by resolution of its directors or Corporation representatives. other governing body, authorise such person as it thinks fit to act as its representative at any meeting of the Association, and the person  so authorised  will be entitled to exercise the same powers on behalf of the corporation which that person represents as that corporation could exercise if it were an individual Member, and references in this Constitution to a Member being present in person will mean and include a representative appointed pursuant to this rule, and such person may also stand for election to the Committee.

  3. No vote if fees unpaid. Unless all invoiced levies and additional fees for the immediately preceding financial year have been paid in full, by the Member to the Association, the Member will not be entitled to vote at any general meeting of the Association, whether in his/her/its own right or as a proxy for another person. This rule will not apply to the Principal Member, however to the extent that money is apportioned to the Principal Member, the Principal Member will be liable to pay those moneys.

  4. Voting at meetings. At any general meeting:

    • A motion may be put to the vote by the Chairperson or by any Member present, which has previously been included in the Agenda.

    • Motions put to the vote will be decided on voices or a show of hands unless a poll is demanded on or before the declaration of the result of the voices or show of hands by:

      • the chairperson of the meeting; or

      • at least five Members present in person or by proxy.

    • In the case of a motion put to the vote of the meeting by voices or a show of hands, a declaration by the chairperson that such resolution has been carried or lost or any entry to that effect in the Association's minute book, will be conclusive evidence of that fact, without further proof of the number or proportion of votes recorded in favour of or against such resolution.

    • Resolutions will be passed by a majority of votes, except where a Special Resolution or the unanimous resolution of all Members is required by the Constitution.

    • In the case of a tie in votes, the chairperson may exercise a casting vote.

  5. Good Faith. Members will, in exercising any vote at any general meeting, or as a Committee member, exercise such vote in good faith with a view to ensuring that all Members are treated equally by the Association, and that each Member will bear that Member's Proportion of all Facility Expenses and of all costs and expenses to be met by levies made by the Association under rule 14 and/or 15, irrespective of whether any expenditure by the Association benefits all Members.

  6. Appointment of Mediator. An independent mediator will be appointed to act in a dispute between any Members and the Developer concerning the Developer's compliance with this Constitution when exercising its powers or performing its duties as the Principal Member if 51% or more of all Owners vote to appoint a mediator. The Members in question must promptly give full written particulars of the failure ("dispute") to the Principal Member, and the dispute will be referred to mediation. The mediation process is:

    • the parties will appoint a mediator and if they fail to agree the mediator will be appointed by the President of the New Zealand Law Society or the President's nominee;

    • the parties must co-operate with the mediator in an effort to resolve the dispute;

    • if the dispute is settled, the parties must sign a copy of the terms of settlement;

    • if the dispute is not resolved within 14 days after the mediator has been appointed, or within any extended time that the parties agree to in writing, the mediation must cease;

    • the cost of the mediator's fee and costs including travel, room hire, refreshments etc. must be met as to half by the Association and as to half by the Principal Member;

    • the terms of the settlement are binding on the parties;

    • the terms of settlement may be tendered in evidence in any legal proceedings;

    • the parties agree that written statements were given to the mediator or to one another, and any discussions between the parties or between the parties and the mediator, during the mediation period are not admissible in any arbitration or legal proceedings.

 

General

 

    • Such reference will mean the prior written approval or consent of the Association or the Principal Member as appropriate.

    • No approval or consent given on any occasion by either of the Association or the Principal Member will serve as a precedent for, or be binding in any way with respect to, any future application for consent or approval; and

    • Such approval or consent will be given at the sole discretion of the Association, or the Principal Member, as appropriate;

    Approval. Where in this Constitution any reference is made to the approval or consent of the Association or the Principal Member:

  2. Dispute Resolution. Without detracting from rule 22.6, any difference or dispute which may arise between a Member and the Association concerning this Constitution or any act or thing to be done, suffered or omitted under this Constitution, or concerning the construction of this Constitution can be referred to mediation as indicated in rule22.6.1, 22.6.2, 22.6.3, 22.6.4, 22.6.6, and 22.6.7, and/or direct to the arbitration of a single arbitrator if the parties can agree upon one, but otherwise to two arbitrators (one to be appointed by either party) and an umpire (to be appointed by the arbitrators before entering upon the reference). Where a mediator is appointed, the cost will be shared equally between the Member raising the dispute and the Association. Any dispute, difference or question as to the jurisdiction of the arbitrator will be determined by the arbitrator. The arbitration will be conducted in accordance with and subject to the provisions of the arbitration statutes for the time being in force in New Zealand. All members are to accept arbitration as final.

  3. Member to Indemnify Association. Each Member will indemnify and keep indemnified the Association from and against any action, claim, demand, loss, damage, cost, expense and liability which the Association may suffer or incur, or for which the Association may become liable, in respect of or arising from any breach of this Constitution or the Bylaws by the Member.

  4. Action in Law. No action in law or otherwise will lie in favour of any Member against any other Member or the Committee, or any Committee member in respect of any act or omission pursuant to this Constitution. Nothing in this rule will prevent an action in respect of any loss or expense arising from the wilful default of the person against whom such action is taken.

  5. Association to Indemnify. The Association will indemnify and keep indemnified:

    • each Member against any liability properly incurred by such Member in respect of the affairs of the Association, to the ex1ent of the property owned by the Association; and

    • members of the Committee from and against any liability in respect of any act or omission in their capacity as a Committee member, to the ex1ent of property owned by the Association, except where criminal liability is adjudged in respect of that Committee member.

  6. Liability of Members. No Member will be under any liability in respect of any contract or other obligation made or incurred by the Association.

  7. Acceptance by Registrar. No such amendment, addition or rescission will be valid unless and until accepted by the Registrar.

  8. Introduction, Alteration or Cancellation of Bylaws. If the Committee wishes to promulgate new Bylaws or vary or cancel any Bylaws, the Bylaw will not be effective until it is approved by the Members by Special Resolution and the prior written consent of the Principal Member (if there is one).

  9. Alteration of Certain Rules.  Notwithstanding rule 23.2, rules 14.11 and 22.6 or any rule or part of a rule that would, if amended, have the effect of altering these rules so that a condition in the Exemption Notice would no longer be met must be approved by a Special Resolution (excluding the Developer and Principal Member) provided that rules 3.3 is not to be amended, added to or rescinded under any circumstances whatsoever.

  10. Alteration of Constitution. This Constitution will not be amended, added to or rescinded except at an Annual General Meeting, or a general meeting convened for that purpose, and unless written notice of the proposed amendment, addition or rescission will have been given to all Members in accordance with this Constitution. Notwithstanding any other rule in this Constitution, this Constitution will not be amended, added to or rescinded without the prior written consent of the Principal Member (if there is one) or so as to alter, add to or rescind rules 4.1, 4.2, 7.1, 8, 9.1, 11.1, 13.2, 13.3, 14.4, 14.9, 17.1, 17.2, 17.3, 18, 19, and 23.2, or otherwise so as to detrimentally affect the rights of the Principal Member. The Members each irrevocably appoint the Principal Member their attorney for the purposes of signing any alteration, addition or rescission of rules pursuant section 21 of the Act.

  11. Dissolution. The Association may be wound up in accordance with section  24 of the  Act.  Upon the winding up of the Association:

    • ownership of the Common Facilities will vest in; and

    • the then balance of any sinking fund collected for Capital Improvements or other purposes under rule 15 will be distributed to,

    • the Members as tenants in common in shares equal to the Member's Proportion as at the date of winding up, and the Association will take all necessary steps to vest legal title to the Common Facilities in the Members.​

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