ACT: Is an executive committee valid if election rules aren’t followed?

This article discusses executive committee election rule compliance and whether an election is valid if nomination rules are not followed.

Question: Is an Executive Committee legally elected if the election process does not comply with the Owners Corporation rules? We have a rule that sets a deadline for when nominations must be received.

Is an Executive Committee legally elected if the election process does not comply with the Owners Corporation rules?

We have the following Owners Corporation Rule and it was not complied with –

8.3(iii) that nominations from unit owners must be received prior to 5 pm, 30 calendar days prior to the holding of the AGM.

I wrote to our Strata Manager to ask if this rule had been complied with prior to the recent AGM and he stated No, as it was too difficult to implement this rule.

Answer: The Act is silent on the matter of pre-nomination vs the ability for members to nominate from the floor.

The Act is silent on the matter of pre-nomination vs the ability for members to nominate from the floor.

S39(b) of the UTMA states that:

If there are 4 or more members of the owners corporation—the members of the corporation must, at a general meeting, decide—

1. by ordinary resolution to have 3 to 7 executive members; or
2. by special resolution to have 8 or more executive members.

S108 (3) of the UTMA states that

An alternative rule is not valid to the extent that it results in the rules—

1. being inconsistent with this Act or another territory law

It could reasonably be argued that the Rule requiring members to nominate prior to 5 pm, 30 calendar days prior to the holding of the AGM, is inconsistent with the Act and subsequently unenforceable.

This would be a matter for which the interpretation from ACAT would be very interesting.

This post appears in Strata News #626.

Nina Cannell
Signature Strata
E: nina@signaturestrata.com.au
P: 02 6185 0347