AGM election confusion

It sounds as if due process was not followed in the election of EC members and you may be able to challenge it on that basis.  The AGM is required to first establish how many members there should be on the EC and then call for nominations.

Also, people who are standing for election may not nominate others for election (although they can nominate themselves).

If the other members were not present and there was no written self-nomination. who nominated them?  If it was the other two, then their nominations were invalid

Validly elected EC members can only be removed mid-term by a special resolution at a general meeting. That would require a 75 percent vote of owners voting in person or by proxy at a general meeting.

But you could demand another General Meeting (if you can raise one quarter of the votes of all the other owners)  or even pursue action at NCAT under section 153 (see below).  However, an adjudicator would have to be satisfied that someone was adversely affected by this and that adherence to the Act would have resulted in a different result.

So your task would be to gather evidence that some people who wanted to be on the EC were prevented from joining and that they probably would have been elected if the provisions of the Act had been followed.

By the way, the Owners Corp is required to keep records of voting papers for EC elections for five years.  It would be interesting to see who nominated whom for your last EC election.

This is what section 153 says:

153   Order invalidating resolution of owners corporation

(1)  An Adjudicator may make an order invalidating any resolution of, or election held by, the persons present at a meeting of an owners corporation if the Adjudicator considers that the provisions of this Act have not been complied with in relation to the meeting.

(2)  An Adjudicator may refuse to make an order under this section but only if the Adjudicator considers:

(a)  that the failure to comply with the provisions of this Act did not adversely affect any person, and

(b)  that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution or have affected the result of the election.

(3)  An application for an order under this section may be made only by an owner or first mortgagee of a lot.

To be on the EC you have to be nominated by an owner.  An owner can nominate themself.  If they are not attending they should give the strata manager a written nomination prior to the meeting, but can also have it given at the meeting, but it must be in writing.

The next step is the owners determine the number of people on the committee. You can use the proxy to vote on any motion on that, as well as vote in your own right.

If there are more nominations than places on the Committee, then it goes to a vote for each person.  You can vote in your own right and with her proxy on each person.

Hi

Thanks for that. I’ll see as to whether she’s keen.

Just in relation to voting for the EC & your eligibility. Our current secretary has been in their position for 9 years & in my opinion, is awful. Our AGM is next week & I have seen that of the date of notice, they are in arrears of. their levies. Can they be voted back onto the EC?

Thanks so much.  I was concerned there for a little while because I am almost certain that the current EC members would vote for the current secretary.  I believe that they wish to hold onto their positions on the Committee, so then to clarify, they wouldn’t be able to vote him (its a guy) in?  It would take someone else not interested in going onto the committee?  

Could I also please ask what section of the Act/Law “restriction on moving motion or nominating candidate and Voting rights may not be exercised if contributions not paid” is located and I am certain that they will argue against it…  Would they need to produce a levy notice that is paid or something like that?

@supersleuth said:
Thanks so much.  I was concerned there for a little while because I am almost certain that the current EC members would vote for the current secretary.  I believe that they wish to hold onto their positions on the Committee, so then to clarify, they wouldn’t be able to vote him (its a guy) in?  It would take someone else not interested in going onto the committee?  

OK, let’s be clear on this.  You have a person who is secretary who was not “financial” at the time the notice of the AGM was issued.

Unless they have cleared that debt – i.e. the money is in the bank – before the start of the AGM, they are not allowed to vote and they may not nominate themselves or anyone else.

However, they can be nominated by another person, provided that person is NOT standing for election themselves.  In other words, they would have to be nominated by an owner who is not a candidate and who is financial.

Would they need to produce a levy notice that is paid or something like that?  

All you have to do is ask for proof that the debt that existed when the notice of the meeting was issued has been cleared – that would be a receipt of some kind. If, after the meeting has started, they can’t prove they have paid the money, then they shouldn’t be allowed to vote.

The way to handle this is to wait until you get to the nominations procedure and say you understand that some of the candidates were not financial when the meeting notice was issued and you would like to know if they are financial now.

This will probably cause great confusion so I have posted the relevant sections of the strata Act below. 

Could I also please ask about the difference between “nominating” and “voting”?  It is my intention to vote for myself to gain a position on the EC.  If I was successful, would I be able to use my friends proxy to vote for her or would someone present need to nominate her?  I’m a bit confused…

A nomination is when an owner says they want to stand for election themselves or they name someone else who they want to be elected to the committee. You can nominate as many people as you want, provided you have their permission (in writing if they are not there).

A vote occurs after the nominations are received.  Votes have to be in writing, signed by the person who voted.

The process is (or should be) that the chair calls for nominations.

Then the owners vote on how many people they want on the committee (to a maximum of nine).

Then, if there are more candidate than seats on the committee there is an election.  If they are the same or fewer, all candidates are considered to have been elected and no vote is required.

The election should be conducted by each person voting writing the names of the people they want on the committee on a piece of paper.  In your case you would have two pieces of paper, your own vote and your proxy (provided your friend has filled in the official proxy form)

NB: Your secretary will only fail to be nominated if his only supporters are either standing for election or are unfinancial themselves. 

Just as a general note, allowing for the cashflow problems that we all face from time to time, and this may be a temporary aberration, I would be worried if the secretary was always behind with his levies.

I think it is very unhealthy for an office-bearer to be perpetually behind on their contributions, considering how much influence they can have when it comes to setting levies for the whole building.  

I would want to know that the sinking fund and admin funds, as well as the forward maintenance plans were in good shape before I was comfortable with someone who was always in debt was elected to such a key position.

Could I also please ask what section of the Act/Law “restriction on moving motion or nominating candidate and Voting rights may not be exercised if contributions not paid” is located and I am certain that they will argue against it…

Strata Schemes Management Act 1996

Schedule 2 Meetings and procedure of owners corporation

Part 2 Provisions relating to procedure for meetings

Division 1 General provisions relating to procedure for meetings

9   Restriction on moving motion or nominating candidate

(1)  A person is not entitled to move a motion at a meeting or to nominate a candidate for election as a member of the executive committee unless the person is entitled to vote on the motion or at the election.

10   Persons entitled to vote at general meetings

(8) Voting rights may not be exercised if contributions not paid
A vote at a general meeting … does not count unless payment has been made before the meeting of all contributions levied on the owner, and any other amounts recoverable from the owner, in relation to the lot that are owing at the date of the notice for the meeting.

Hi…

Just a word of thanks to the information that I was given through this post.. We had the AGM for our building last night and while our Secretary was paid up, I managed to get myself and the other honest owner onto to our EC through a poll vote.  One of the current members of the EC didn’t even know being able to vote that way even existed!  

Thanks again…