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We recently had an EC Meeting to elect 3 new EC members. 2 people left the building and submitted their resignation – the 3rd one did not submit a resignation letter. I could not attend due to family reasons, however, have since found out that a 4th person resigned on the night, not having submitted a resignation letter also. Is the EC meeting invalid? From 5 people on the EC – 4 new people were elected. Our managing agents told us only 3 people needed to be elected. From this, a genuine, trustworthy ‘oldie’ was not elected to the EC. This person having valuable information on the history of the building. I have since posed the question to the Managing Agent that 2 people did not submit resignation letters PRIOR to the meeting. Suspect 2 post-dated resignations will surface shortly. And is that legal? Any suggestions?
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Nor sure about the specific legalities of all this but members who sell automatically cease to be members when they are no longer owners, regardless of whether they resign in writing or not.
If the number of members of the EC was set at 5 at the last AGM, it also looks like at some point the meeting ceased to be quorate, meaning any decisions they made may have been invalid.
However, you would have to seek orders from an NCAT adjudicator to overturn the decisions and to succeed you would have to prove that a “serious injustice” occurred because of the decisions being made while the meeting was inquorate.
The next logical step, if that is established, would be to hold an EGM to elect a new committee – but I’m not sure any adjudicator would demand that.
Anyone else been in this situation? Here’s what the Act says:
Division 11 Provisions relating to orders of Adjudicator
163 Dismissal of application on certain grounds
(2) If the ground for an application for an order under this Part is:
(a) the absence of a quorum at a meeting, or
(b) a defect, irregularity or deficiency of notice or time,
an Adjudicator may, by order, dismiss the application if the Adjudicator believes that no substantial injustice has resulted.
(3) An Adjudicator may, by order, dismiss an application for an order under this Part on any other ground that the Adjudicator considers appropriate.
(4) Without limiting the generality of subsection (3), an Adjudicator may, by order, dismiss an application for an order under this Part if:
(a) the Adjudicator believes that the application is frivolous, vexatious, misconceived or lacking in substance, or
(b) the Adjudicator believes that a decision in favour of the applicant is not within the jurisdiction of the Adjudicator, or
(c) the Adjudicator believes that the applicant has unreasonably delayed the provision of information required by the Adjudicator, or
(d) in the case of an application made by an owner of a lot in the strata scheme concerned, the applicant has not paid all contributions levied and payable in relation to the lot under this Act.
(5) An Adjudicator may dismiss an application in accordance with this section even though the notice requirements of Part 3 have not been complied with and despite that a time, or extended time, specified for making written submissions on the application has not expired.
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.
There are a lot of strange EC meetings (sorry couldn’t help myself).
Re some of the legalities – Jimmy is right, if someone sells then they can’t be on the EC so there is no need for a resignation letter, refer section . That element doesn’t matter.
In relation to the other two, the Act provides that the position is vacated upon receipt of written notice. However, from what you have said out of the five members there were possibly only one or two of the existing EC members there? – so as Jimmy says the meeting didn’t have a quorum so technically there was no meeting.
Note that the usual procedure when someone resigns (setting aside the two who had sold) is that they resign effective as at the end of the meeting, that way the meeting has a quorum and can effect any business it needs to get done.
I’m not sure why the manager said you only needed to elect three members if four had resigned.
In relation to electing EC members – strictly speaking Schedule 3 provides that where a vacancy occurs the owners corporation must elect someone to fill that vacancy – para 4(4) of Schedule 3. I know this has been debated before and some people won’t agree with me, but I believe that means the owners corporation in a general meeting. Whatever – it is a completely unworkable provision.
I suggest the easiest solution is this. Scrap that meeting, it didn’t have a quorum. Call another meeting and make sure the three existing EC members (including you) are there so you have a quorum. Get the two resigning members to do letters resigning at the end of that meeting, and then proceed with the meeting.
You will just have to elect new EC members at that meeting, because otherwise you can’t do anything once the two other members have gone. Unless you want to have a general meeting, and you can elect the members then!
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