Can the EC elect new EC members?

SSM regulations 2010
17   Election of executive committee

(1)  At a meeting of an owners corporation at which its executive committee is to be elected, the chairperson must:

(a)  announce the names of the candidates already nominated in writing for election to the executive committee, and

(b)  call for any oral nominations of candidates eligible for election to the executive committee.

(2)  A written or oral nomination made for the purposes of such an election is ineffective if it is made by a person other than the nominee unless it is supported by the consent of the nominee given:

(a)  in writing, if the nominee is not present at the meeting, or

(b)  orally, if the nominee is present at the meeting.

(3)  After the chairperson declares that nominations have closed, the owners corporation is to decide, in accordance with clause 2 (2) of Schedule 3 to the Act, the number of members of the executive committee.

(4)  If the number of candidates:

(a)  is the same as, or fewer than, the number of members of the executive committee decided on—those candidates are to be declared by the chairperson to be, and are taken to have been, elected as the executive committee, or

(b)  is greater than the number so decided on—a ballot is to be held.

It is like cooking a cake and the Regs are the recipe.
Jeremy; do you think what happens meets with the Regs.

Clause 4 of Sch 3 of the SSMA 1996

(2)  When a vacancy occurs in the office of a member of an executive committee (otherwise than by reason of subclause (1) (d)), the owners corporation must appoint a person eligible for election as a member to fill the vacancy. Any person so appointed holds office, subject to this clause, for the balance of his or her predecessor’s term of office.

It sound as if the vacancy needs to be filled ASAP but what it says and what it actualy means can be different things.

Sounds invalid to me.

To elect an executive committee, the chairman must first announce the names of the candidates of the executive committee (Reg 17(1)). Only eligible people may be nominated, and ghosts aren't eligible.

After the chairman declares nominations have closed, the owners corporation votes on how many seats will comprise the executive committee (Schedule 3, Clause 2(2).

You have seven valid nominations, but eight seats reserved. Each nominee has secured a seat because there are more seat vacancies than nominees. The eighth seat is cancelled, because it was not filled by a valid candidate (Reg 17(4)(a)). The executive committee is now finalised: it comprises seven seats by seven people.

* Also note, some people occupy several office bearer positions (ie. chair, secretary, and/or treasurer) of the executive committee in the mistaken belief that this gives that one person two or three votes. It doesn't. On the executive committee it's one head, one vote, and no ghosts.

@Billen Ben, good point. In THAT case if the vacancy is valid, the empty seat is filled by the following ways:-

1. OC in a general meeting passes an ordinary resolution to appoint the person: cl 4(2), Sch3.

2. EC passes a resolution to appoint a person provided a general meeting has not removed this power from the committee: cl4(2),Sch3. The EC has authority to do this based on s21(1) and cl17, Sch3.

3. The strata managing agent records a decision in the OC's minute book appointing a replacement, and only if the managing agent if the managing agent has been expressly or impliedly delegated the power in the agency agreement or resolution of appointment.

The detailed procedures of nomination and election, detailed in regs 17,18, don't need to be followed in options 2 and 3 above.

Source: pages 102-3 of Alex Ilkin's book, NSW Strata & Community Management & the Law (4th).

I can accept the arguement of Jeremy @ Newcastle but it would mean the number of candidates, if less than 9, then determines the maximum number of EC members in the determining motion of clause 17(3).

BUT recall that 17(3) places no restriction on the number of EC members. If “ghost vacancies” were meant to be prohibited it should have been picked up in 17(3). Perhaps it was an oversight by the legislators.

Clause 4 of Sch 3 is generally about filling a vacated position, not a ghost position. Cl 4(2) of Sch 3 is not necessarily restricted to the circumstances of cl 4(1) but I can see Jeremey arguing that 4(2) is clear the new member serves for the rest of the term of his/her predecessor and a ghost is not a real predecessor therefore there is no clear mechanism to full the ghost vacancy. I would accept that.

I can follow Jeremy's line of thought and it is a good case. I would agree that until the Supreme Court, or the Court of Appeal, make a statement the matter will remain an unresolved debate.

Until then the best practice would be to respect the wishes of the AGM as long as it is not something that obviously breaks the Act or Regs and i don't feel there is an obvious breach; but Jeremy is on to something.

I own a Unit in a small complex of 5. The Strata Manager sent my AGM papers to the wrong address hence I was unable to attend the recent meeting. At that meeting the EC was resolved at 2 members.  One of those members has recently sold his unit.

I contacted the Strata Manager and offered to replace him on the EC and was told nominations can only be accepted at the AGM (which I couldn't attend due to their error).  Is it correct that we can now only have 1 EC member until September when the next AGM is due? Or can I be appointed as a replacement for the other member who is no longer an owner until that time? 

Seems unrealistic to have an EC member who is not an owner.

The minutes from our last AGM states that should someone be elected to the EC during the year it would have to be approved by 2 EC members.  As we only have one EC member on the committee, not much chance of this happening is there.

get the required signatures to hold an EGM (25 percent) or take them to Fair Trading and the CTTT and ask an adjudicator to order the election to take place