- This topic has 8 replies, 6 voices, and was last updated 8 years, 11 months ago by .
-
Topic
-
Hi
Have been on executive committees for many years both in and out of strata. I thought I had seen it all but apparently even I can be shocked,
We had a meeting the other week and one of our members had resigned due to ill health so now we have a committee of six. There was an election to fill the casual vacancy and the outcome has created shockwaves.
I have always used Robert Rules but was informed by my strata manager this was not in use anymore. The situation is there are six votes – 3 for the motion, two against the motion and one abstainer. Under Roberts and my opinion this is not a majority – a majority is four.
Am I wrong? The SM says I am. Help please
-
Replies
-
Firstly, that is a valid majority. An abstention is a non-vote, not a ‘no’ vote, so the vote was three for and two against.
Regarding Roberts Rules, there are no set standing orders for strata committees and you would have to have a vote taken (probably at a general meeting) to establish what rules you were going to operate by, Roberts or Rafferty’s or anyone else’s.
Which reminds me, I keep asking Fair Trading to supply an off-the-peg set of standing orders but they never do it and I never get round to it.
Maybe that will be my project for this year.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
An executive committee (E/C) vacancy that occurs in the circumstances described needs to be filled in accordance with a vote by the owners corporation – not by the remaining committee members.
So if the vote was as it seems by the E/C, then irrespective of how votes were recorded, it was invalid.
@Whale said:
An executive committee (E/C) vacancy that occurs in the circumstances described needs to be filled in accordance with a vote by the owners corporation – not by the remaining committee members.There is some debate over this.
Section 4 (2) says: When a vacancy occurs in the office of a member of an executive committee … the owners corporation must appoint a person eligible for election as a member to fill the vacancy.
However Section 21 says decisions of the Executive Committee are decisions of the Owners Corporation, except where those decisions require a special resolution or a unanimous vote (see below).
A lot of Owners Corps take that to mean the the EC can elect replacement members when one leaves, because Section 4 doesn’t specify that the decision has to be made in a general meeting.
However, section 2(b) says any decisions made in a general meeting can only be decided in a general meeting. The election of the EC occurs at a general meeting so that would suggest that Whale is correct.
All I can say is most ECs that I know take the former point of view and I have never heard of it being challenged at a Tribunal.
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.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
As inconvenient as it may be for the secretary to convene a general meeting in order to fill a casual vacancy on the executive committee (E/C), the salient and perhaps logical point is that given in Cl.2(b) [copied in Jimmy T’s post #4] where, as the appointment of the current E/C members was made by the owners corporation at a general meeting, the same procedure should occur to fill a casual vacancy.
This interpretation of the Act may allow kik11e and like-minded owners to challenge the “shock wave” appointment ideally, provided their collective units of entitlement is ≥25% of the plan’s aggregate, by requisitioning the secretary (or strata manager if so delegated) to convene an extraordinary general meeting in order conduct a proper election for a replacement E/C member.
With the benefit of hindsight it would have been better if the resigning member had sought to appoint another owner to “act” in their place at each meeting of the E/C until the date of the next annual general meeting.
Haven’t been on here in a while. I tend to think the same as Whale on this one. Since an EC has to be elected at every AGM, and the legislation uses the words the ‘Owners Corporation’ must appoint a person eligible to fill the vacancy, rather than the ‘Executive Committee’ must appoint a person eligible…etc.
Also if you hold an EGM to fill any vacancy in the EC, you avoid any potential disputes where owner/s can dispute that the right procedure was not followed as per the Act. Basically you can’t go wrong holding an EGM.
Holding an EGM is a major hassle and expense (and my guess is no one would turn up).
However, it would be much better than our system whereby the chairman approaches people privately and doesn’t announce the candidates for election by the EC only until after the matter “to save the embarrassment of those who aren’t elected”.
Currently all but one member of our seven-strong EC was appointed mid-term in this way. Guess how often the chairman doesn’t get his way.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Our strata manager Tricky Rikky says “Ahhhh… but Costa, the Act says the vacancy has to be filled, but it doesn’t say by when… ” so in the two instances this has happened to us in recent years (an EC member vacating in Sydney NSW) they have just not been replaced and we’ve waited until the next AGM, in one case 10 months.
In the ACT, where I am, the Act states: “The executive committee of an owners corporation may appoint a member of the corporation to fill a casual vacancy on the committee until the next annual general meeting.”
‘May’ means the EC could carry on without replacing. The EC could find someone willing by whatever means it likes, which could be conducting a vote of the OC, but it is not obliged to do so.
In our OC, when an EC member resigned part way through the year recently, the remaining EC put a short item in our newsletter. We thanked the person who had resigned, we pointed out that we traditionally try to encourage someone from each of 5 zones in our large site to nominate to be on the EC and we pointed out that we had no-one from one of those zones. Consequently, we would encourage anyone who would like to see what it is like to be on the EC to let us know, particularly if they were from the ‘unrepresented’ zone. We pointed out that this was an ideal opportunity for someone to see what it would be like to be on the EC without committing to a whole year. We did not get any expression of interest so we carried on with the remaining EC members for the rest of the year.
As for ‘Tricky Rikky’, I think you could point out that when a time period is not specified the reasonable interpretation is that the thing would be done promptly without unnecessary delay.
- You must be logged in to reply to this topic.