Regarding election of EC mid-term replacements by the EC (rather than a general meeting) I can only go by what I know is standard practice in my building and I believe in many others, and that is that the EC elects replacements.
I think the significant difference between my interpretation of the law from Whale’s is that he thinks the Act means the Owners Corp has to elect a replacement and I think the EC, acting on behalf of the owner’s corp, can do so, and in saying that, I would cite Section 21 (below).
I the building in which I live, the EC announces a vacancy in its minutes and then the chairman quietly anoints someone and the EC duly elects them.
In five years of shuffling the decks this way, our chair has arranged things so that all but one of the EC members is now his personal choice.
A couple of years ago, the chairman wanted to appoint one of his mates who had cause a lot of grief in the building and I stood against him, just to give the EC a choice.
It was a stalemate and neither of us were elected (a win-win for me). At the next AGM, the chair used his 50 percent-plus proxies to change the rules so that nominations were not declared before mid-term elections of replacements “to save the embarrassment of the losing party.”
Cynics might suggest that it was really so that the office-bearers could elect whoever they wanted before anyone even realised what was afoot.
Trust me, if I thought there were any legal grounds for challenging this, I’d have the lot of them down at Fair Trading and NCAT faster than you can say “proxy harvest”.
But even if I am right, a general meeting can overturn an EC decision – wonder if that applies to EC mid-term recruitment too.
This is what Section 21 says:
21 Executive committee’s decisions to be decisions of owners corporation
(1) A decision of an executive committee is taken to be the decision of the owners corporation, subject to subsection (4).
(2) However, the following decisions may not be made by the executive committee:
(a) a decision that is required by or under any Act to be made by the owners corporation by unanimous resolution or special resolution or in general meeting,
(b) a decision on any matter or type of matter that the owners corporation has determined in general meeting is to be decided only by the owners corporation in general meeting.
(3) An owners corporation may in general meeting continue to exercise all or any of the functions conferred on it by this Act or the by-laws even though an executive committee holds office.
(4) Despite any other provision of this Act, in the event of a disagreement between the owners corporation and the executive committee, the decision of the owners corporation prevails.