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Topic
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At last year’s AGM, 5 people were elected to the Strata Committee from 7 nominees. A woman who owns 2 units in the block was elected representing one of her units, and she nominated a proxy (non-owner) to represent her second unit. This person was also elected.
The proxy has recently passed away. Therefore there are currently 4 people on the committee.
What happens in this situation?
1. Can the owner of the two units simply nominate another proxy to take the place of the deceased member? Or,2. does the person who received the next number of votes at the AGM automatically go on the SC? (It has since been established that the verbal election at the Zoom AGM was invalid). Or,
3. are new nominations called and a new election held to fill the vacancy?
Or is their another alternative?
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Replies
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Assuming this is in NSW, Section 35 (2) says this
A strata committee may appoint a person eligible for election as a member to fill a vacancy in the office of a member of the strata committee … or a vacancy in the office of an officer of the owners corporation. Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office.
Which bring us to who is eligible and who isn’t and for that you need to refer to Section 31 and Section 32 of the Act.
But basically the committee decides on who it wants to fill the empty seat. The owner of the two units would only have one vote in this regard and it doesn’t have to be an owner, although other restrictions apply as per sections 31 and 32. There is no strict nomination procedure here. The committee should call for volunteers (although it doesn’t have to, especially if there are agreed candidates) and then select the person they think is best suited to the role.
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The active word is “may” – there appears to be no compulsion to do so.
However, any owner could raise an action at Fair Trading/NCAT to seek orders that the committee fills the vacancy under Section 232 (2) “Failure to exercise a function”.
Perhaps a vague threat that this option might be open to owners, including existing committee members and candidates, might focus the committee’s thoughts on a compromise. Whether it would fly or not is another matter, but concerns about the mediation and Tribunal process might dislodge one member from an entrenched postion.
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It is the same in the ACT. The remaining committee may (not must) appoint an eligible person to fill a casual vacancy until the next AGM when a whole new committee is elected.
In the ACT, at least, don’t know for NSW, the chair of the committee has a vote as a member of the committee and also a casting vote if a committee vote is split 50:50. Depending on what you think of the chair, you may or may not want to let the chair know!
It could be good politics to call for expressions of interest from among the owners or it could be quite reasonable to just invite someone who got substantial support but just missed out on being elected at the AGM. It might also be reasonable for the 4 remaining members to just carry on till the next AGM bearing in mind that the chair could break any deadlocked vote (in the ACT at least).
In the ACT, at least, don’t know for NSW, the chair of the committee has a vote as a member of the committee and also a casting vote if a committee vote is split 50:50.
The chair doesn’t have a casting vote in NSW but they do in Victoria.
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How about proposing to the committee that you narrow it down to two preferred candidates and have an online plebiscite among owners? Just put an item on the next committee agenda “Vacancy on committee” and take it from there.
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Is it compulsory for the SC to have a motion on the agenda to fill a Casual Vacancy, or can it be done by inviting the potential candidate to an SC meeting, and appoint them by majority agreement (without a formal pre-distributed motion)?
I understand ‘best practice’. The question relates to attempts by one Officer to avoid appointing someone to fill a Casual Vacancy by deliberately leaving it off the agenda
A committee can fill a casual vacancy.
To do this requires a motion on the SC meeting agenda. The act does not specify that nominations need be called, nor a vote taken of any nominees.
That leaves the committee to appoint anyone they see fit to fill the position.
But the motion needs to be on the agenda. and the secretary sets the agenda.
The act also does not compel a committee to fill a casual vacancy, so the position can be left vacant. The only problem this raises is that there may at some time not be enough people in attendance at a committee meeting to form a quorum.
If a committee holds a seat open for an inordinate amount of time, any owner might seek mediation then NCAT orders under Section 232 that the committee elect a candiate for the vacancy on the grounds that the OC will have established the number of members on the committee at the AGM and has failed to fulfill its responsibilities by not using its power to maintain that number.
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