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31/08/2013 at 11:39 am #9008
There is something I need to know before our upcoming AGM, that seems not to be in the Legislation. Which may be an issue about EC members refusing to allow new members be voted in, even though we have only 2 EC members for our more than 50 owners’ scheme.
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.
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31/08/2013 at 12:12 pm #19311
Since your AGM is coming up, this situation may resolve itself. There is a very clear process that must be followed at the AGM.
1. First the meeting decides how many members there will be on the EC. In NSW this can be a minimum of 1 and a maximum of 9.
2. The Chair then call for nominations for the number of seats agreed upon. If there are more nominations than seats, you hold an election, based on all those voting having a vote per vacant seat (think of a sheet with, say, 12 names on it but you can only tick the number of boxes corresponding to the number of seats available).
3. If there are fewer candidates than there are seats, the Chair could start the process again, this time suggesting the same number of seats as candidates. Otherwise it is incumbent on the EC to identify and co-opt new memebrs to fill the vacancies.
This is what would happen if you didn’t have an AGM coming up.
Here is what the Act says about vacancies on ECs:
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. Any person so appointed holds office, subject to this clause, for the balance of his or her predecessor’s term of office.
Note, there is no time limit on this but, for instance, if the last AGM agreed to have five members on the EC and someone who was eligible nominated themselves or was nominated, the remaining members of the EC are pretty much obliged to bring them on board until the next AGM when all seats are vacated and you start again.
Failure to do that would be grounds for an action at the CTTT to have an order issued to the EC to fulfill their statutory duties.
By the way, if the current chair uses an excessive number of proxy votes to reduce the numbers on the EC then elect only their cronies, they should be warned that these days the CTTT takes this as a sign of a dysfunctional EC, especially when there is an action to replace the EC (and owners Corp) with a strata manager.
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.
02/09/2013 at 8:41 am #19314Schedule 2 of the strata act says
17 Counting of votes on election of executive committee
(1) An election of members of the executive committee is to be decided according to a majority in number of the votes cast at the election with a person entitled to vote having one vote for each lot in respect of which the person is entitled to vote, unless a poll is demanded by a person present and entitled to vote at the meeting.
And if the intial decisions was to have 3 members I would assume you would need a motion on the Agenda to change this and that motion to be approved by a vote and untill that happens you need a committee of 3.
Do you have a SM or is it self managed??
From what you say I would expect the current committee to be invalid and unable to perform their duties as they were not duly elected. (advise them (and SM) that any spending they authorize might have to come out of their own pocket not the strata funds as they have no authority to spend strata funds).
Also before the agenda was sent out a request should have been sent round to all owners inviting them to submit motion and put their names forward to be on the committee.
02/09/2013 at 1:13 pm #19323Thank you for your reply.
I had better more specifically explain the circumstance, and then ask the specific question.
We had 3 members in our Executive Committee, then 1 left and vacated the premises before that last AGM , and was not replaced in the manner you described , and as is in the Legislation.
In the procedure you numbered for the AGM:
1. was not done at the last AGM – the meeting was not asked to decide how many EC members.
2. was not done – the Chair did not call for nominations.
No-one spoke , and it seemed to be presumed that the 2 remaining members of the EC were already nominated – perhaps they had in advance in writing , however their names were not stated to the meeting.
Perhaps no-one considered it mattered because we knew them from the previous year.
Next , the Chair stated that the number of EC members for the coming year be set at 2 and asked that we vote – which everyone else did , however I was then a fairly new owner and unsure of the correct process , so I did not know what to do then.
Strangely , since the AGM a few other owners have said to me that we should have 3 EC members as had previously been the case , so I am puzzled why none spoke up at the meeting.
My specific questions are:
There are 3 Office-bearer positions in the Legislation for Executive committees:
Chairperson ; Treasurer ; Secretary ,
thus can any person at the AGM refuse to allow at least 3 eligible owners nominations be accepted to be EC members ?
And , regardless of whatever procedure the Chair of the meeting follows , such as possibly stating the number has been set at 2 , can it be legally voted by a majority of attending owners , including the few proxies , that the number remain at 2 after a 3rd eligible owner has stated he/she wants to nominate ?
I am not concerned that 1 EC member may hold 2 of the Office Bearer positions , I am only concerned that a 3rd eligible owner’s nomination may be not allowed as result of who-ever , whether Chair of the meeting or one or other of the current 2 EC members , stating to the meeting that the number of EC members has been set at 2.
There may be only a minority of owners present who want 3 members in the EC , thus not able to force a vote for the number to be changed if the Chair does not call for a number to be set.
04/09/2013 at 4:26 pm #19361Our EC chairman recently resigned – no-one nominated to fill the vacant position at the EGM that was called despite many requests etc. Many of our original residents are way over 80 and many are in ill-health.
The meeting voted to reduce the number from 7 to 6 until the AGM (5 months away). From my understanding The Act says this vacancy must be filled but if you reasonable can’t fill the position is our decision not to fill acceptable under the law. We are a block of 12 so 7 is most probably too many in the first place.
04/09/2013 at 11:25 pm #19365I’m no lawyer, but I think what your OC has done is perfectly permissable.
The Act says that there must be a motion on the agenda for the AGM to set the number of EC members and a motion to elect them. These two motions are ordinary resolutions not special resolutions. And they don’t necessarily have to be in that order.
Whilst the Act, schedule 3 clause 4(2), also says that the OC (not the EC) must fill a vacancy on the EC, there is nothing to say the OC can’t hold an EGM, which you apparently did, to re-set the number of EC members, reducing it by 1 so that a new election was not required.
Any GM (AGM or EGM) can rescind or amend an ordinary resolution passed at a previous GM by way of another ordinary resolution.
Two more points:
1) For a block of 12, an EC size of 3 is probably sufficient, unless there are hordes of octagenarians dying (?) to get on the EC, in which case 5 should be more than sufficient.
2) There are no Strata Police driving around raiding random blocks, checking that everything has been done absolutely correctly, and it doesn’t sound like you have any owner who will complain to the CTTT that he/she was denied their rightful place on the EC.
05/09/2013 at 7:47 am #19366@Kangaroo said:
The Act says that there must be a motion on the agenda for the AGM to set the number of EC members and a motion to elect them. These two motions are ordinary resolutions not special resolutions. And they don’t necessarily have to be in that order.
I am going to stick my neck out here and say we are both wrong. The 2010 regulations say this (emphasis in the following is mine).
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 tothe 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.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.
05/09/2013 at 6:57 pm #19371Thank you to everyone for your replies and comments.
Given what JimmyT has posted , as below:
JimmyT said
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.–
Do I understand correctly that:
after the Nominations have been announced to the meeting
the meeting can then vote to limit the number on the Executive Committee to 2 persons
even if there has been only 3 Nominations ?
That is despite there being 3 Office-bearer positions in an EC:
Chairperson ; Treasurer ; Secretary ,
and allowing that 1 person may hold 2 or all 3 of the Office-bearer positions ,
can Owners by majority Vote in a Strata Plan with more than 50 and less than 100 Residential units refuse to allow 3 members , or more up to the maximum of 9 , in the EC
by voting to limit to 2 members ?
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