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We had a situation at a previous AGM when the number of nominations exceeded 9. A ballot was required and the ballot paper was just initial and surname eg J Doe. Many only knew the people as John or Kay and ticked off the first 9. J Doe was at he end of the list and we lost a very good returning member. The Chairman used his many proxies and his mission was acomplished.
So the question is. Is there a set format for ballot papers?
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The SSMA 2015 legislation is stated below. Note the use of the phrase “name of each candidate”. In my opinion an initial is not a legal name.
Section 10 Ballot for strata committee(1) This clause applies to the election of a strata committee for a strata scheme comprising more than 2 lots.
(2) If a ballot for membership of the strata committee of an owners corporation is required, the person presiding at the meeting of the owners corporation must:
(a) announce to the meeting the name of each candidate, and
(b) provide each person present and entitled to vote at the meeting with a blank ballot paper for each vote the person is entitled to cast.
(3) For a vote to be valid, a ballot paper must be signed by the voter and completed by the voter’s writing on it:
(a) the names of the candidates (without repeating a name) for whom the voter desires to vote, the number of names written being no more than the number determined by the owners corporation as the number of members of the strata committee, and
(b) the capacity in which the voter is exercising a right to vote, whether:
(i) as owner, first mortgagee or covenant chargee of a lot (identifying the lot), or
(ii) as a company nominee, or
(iii) by proxy, and
(c) if the vote is being cast by proxy—the name and capacity of the person who gave the proxy.
(4) The completed ballot paper must be returned to the chairperson.
(5) Until all places for membership of the strata committee have been filled, the chairperson is to declare elected successively each candidate who has a greater number of votes than all other candidates who have not been elected.
(6) If only one place remains to be filled but there are 2 or more eligible candidates with an equal number of votes, the candidate to fill the place is to be decided by a show of hands of those present and entitled to vote.
(7) Subclause (6) is subject to a resolution referred to in clause 14 (1) (a).
I think it’s pretty clear that this election has not been conducted properly under the terms of the Act.
Section 10, 2(b) says: “If a ballot for membership of the strata committee of an owners corporation is required, the person presiding … must provide each person present and entitled to vote at the meeting with a blank ballot paper for each vote the person is entitled to cast.”
Section 3 (a) says: “For a vote to be valid, a ballot paper must be signed by the voter and completed by the voter’s writing on it … the names of the candidates (without repeating a name) for whom the voter desires to vote.”
These conditions – taking the pre-printed voting paper out of the process – were introduced specifically to rule out the “donkey votes” or anyone being disadvantaged by being listed alphabetically or otherwise.
I also wonder how many proxies your chairman had. You’d need to have more than 40 units for them to have held more than one.
You can challenge this by seeking mediation at Fair Trading, demanding a fresh election then, failing that, via orders at NCAT under Section 24 (below). Bear in mind, however, the Tribunal has the option not to issue the order if they feel the result would not have been any different even if the rules had been followed.
24 ORDER INVALIDATING RESOLUTION OF OWNERS CORPORATION
(1) The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of this Act or the regulations have not been complied with in relation to 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.
If it was in 2106, unless it was held in December it would have been under the 1996 Act, so none of the above applies. Didn’t you have an AGM last year?
Not at all unusual for a strata manager to attend – especially when the committee is a bit shaky on the rules.
FYI: With 71 lots, each proxy holder is limited to three proxy votes.
Just to put the cat among the pigeons, send your secretary a copy of Section 10 (2) as provided by Lady P with a note saying that, in order to avoid conflict, you trust the election for the committee will be held according to current strata law.
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.
Here they are:
Strata Scheme Management Act 1996: https://www.legislation.nsw.gov.au/#/view/act/1996/138/whole
Strata Schemes Regulations 1997: https://legislation.nsw.gov.au/#/view/regulation/1997/279/historical2003-02-10/part4/sec15
The provisions are very similar to the current rules. Strata committees that have been providing pre-filled voting forms have been in breach of Sections 14 and 15.
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.
Here it is. NB: To new readers, this is from the 1996 Act and has been superseded by the 2016 Act (although it is fundamentally the same).
The process is that the Chair calls for nominations.
The meeting then decided on the number of people they want on the committee.
If the number of nominees is the same as the number of seats, no ballot is required and they are declared elected.
If the number of nominees is greater than the number of seats on the committee, you have a ballot.
If the number of nominees is fewer than the number of agreed seats, you have vacancies which must be filled by a vote of the committee members (although you would have to be very suspicious if this was allowed to happen).
14 Election of executive committee (From strata regs 1996, now superseded by 2015 Act)(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.
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.
Would like to know if when having a ballot, and say the owners decide to determine at 7 strata members, do I have to write 7 names on the paper or can I write 4 or 5 names, would this make my vote invalid?
You can write as many or as few names as you like, provided they have been nominated and you don’t exceed the number of vacant seats on the committee.
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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