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Hi All,
we have supposedly a 3 member Executive Committee. On several occasions now, one of the named Members is represented by her husband.
When they want to breach a By-Law, it becomes a He said She said situation.
Latest example : Wife removes established plants from Common Property without O.C approval. Meeting called to issue Notice to Comply. Husband attends, not wife and votes down Motion (along with 3rd member of Executive, who would make Chamberlains appeasement policy look hard-core) claiming “some misunderstanding by my wife and it’s not fair because she isn’t here to defend herself”. Case closed.
How would Flat Chatters deal with this ?
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Now that is a tricky one.
There are some technicalities in relation to EC members being represented by someone else.
Clause 3 of Schedule 3 of the Act provides that a member of the EC can appoint an owner to act in their place as a member of the EC, provided the EC consents to that. So a couple of things:
– is the husband an owner? That is – is he on the title of the property? If he isn’t, then he can’t act in the wife’s place as an EC member and that solves your problem.
– if he is an owner, then there is the matter of the EC consenting to the wife appointing the husband. You say that the other EC member is likely to vote their way, but that still leaves the other vote which if it were negative would mean that no consent has been given.
This is presuming that the husband/wife can’t vote on the consent issue – I am not too sure of that, but at this point it can bind them up in a few technicalities, and you could call their bluff and just say sorry you can’t vote.
At the very least you should be insisting that the husband/wife duo comply with the formalities required if they wish to play this game. What I am saying is that the husband can’t just expect to roll up and represent his wife without at least going through the process required.
The thing is, even if you do that, if the other EC member is still too chicken you are not going to be able to get the notice to comply issued.
Otherwise you could put a motion to the EC requesting that they enforce the relevant by-laws. If they don’t you have the option to make your own application to NCAT in relation to the breach/es.
More generally, I am not sure how many people are in your scheme but have you thought of getting more people on the EC?
@scotlandx said:
At the very least you should be insisting that the husband/wife duo comply with the formalities required if they wish to play this game. What I am saying is that the husband can’t just expect to roll up and represent his wife without at least going through the process required.
Absolutely right. You could ask for the application for representation to be put in writing.
Or you could just refuse to allow Mr to represent Mrs. The “proxy” member has to be allowed by a majority vote of the committee. If it’s a 1-1 vote, then the status quo prevails and Mr Proxy can’t join the committee and should remain silent through the meeting.
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.
You could lean on them to abstain on a matter in which they have a conflict of interest. In my experience EC members have been willing and often volunteer to absent themselves from that part of a meeting at which a matter is discussed for which they are an interested party. Eg. if an EC member is seeking approval for a unit alteration.
One other thought – if you have a scenario where husband says it’s not fair because wife isn’t there to defend herself, say fair enough, we’ll defer consideration of the matter until she is able to attend and speak to the issue.
After all due process is so very important.
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