NSW: How is majority calculated with strata committee vacancies?

Question: If six members are elected and three vacancies for a nine member strata committee, is a majority vote of five required to pass/resolve matters?

At the AGM, six members were elected to the strata committee with the determination that there be a total of nine members on the strata committee with three vacancies.

I have been advised that this will mean all items will require a majority vote (five) to pass/resolve matters that the committee are considering despite there being only six elected committee members. Is this correct?

Wouldn’t a majority be based on the elected committee members, so in this case, 4 out of 6?

Answer: The strata committee remains a nine-member committee with three vacancies. It does not automatically shrink to six members just because only six people were elected.

The issue at hand involves two key questions:

1. Does the total number of strata committee positions reduce automatically if fewer members are elected?
2. How is a majority vote determined in a committee with vacancies?

Committee size does not automatically reduce

Under the Strata Schemes Management Act 2015 (NSW) (SSMA), the owners corporation determines the number of committee members at the AGM. If there are fewer candidates than positions, the committee is formed with vacancies, but the total number of committee positions remains as determined.

• SSMA Section 30(1) states the owners corporation must determine the number of committee members, up to a maximum of nine.
• Clause 9(4) of the Strata Schemes Management Regulation 2016 (NSW) (SSMR) confirms that where fewer candidates are nominated, those nominees are automatically elected. While some might argue this means that the remaining positions do not exist, the fact the owners corporation initially determined a larger committee size means those positions remain unfilled rather than ceasing to exist. No provision in the legislation explicitly states the number of positions is reduced post-election, meaning any reduction must be done through a formal resolution at a general meeting.

Therefore, in the scenario given, the strata committee remains a nine-member committee with three vacancies. It does not automatically shrink to six members just because only six people were elected.

How is a quorum determined?

A quorum for strata committee meetings is not based on the number of elected members but on the total determined positions.

1. SSMA Schedule 2, Clause 12(4) states: “The quorum for meetings of a strata committee is to be calculated on the basis of the number of members last determined by the owners corporation.”
2. This means that even if only six members are elected if the total number of positions is nine, the quorum remains five.

Majority voting is based on attendees at a quorate meeting

While quorum is based on the total number of positions, majority voting is based on the number of members present at the meeting.

1. SSMA Schedule 2, Clause 9(1) states: “A motion is decided by a majority of the votes cast by members present at the meeting.”
2. As long as a quorum is achieved (five members present), a majority decision is made by more than half of those present.

Thus, if only six members were elected, and five members attended a meeting (meeting the quorum), a majority vote requires three out of five votes. If all six attend, a majority requires four out of six votes.

Conclusion: The correct majority calculation

Based on the legislation, a majority vote is not 5/9. Instead, it is a majority of votes cast at a quorate meeting. If a meeting is attended by five members (quorum), three votes would be required for a motion to pass. If six members attend, four votes would be required.

Important disclaimer: Not legal advice

This article provides an explanation based on the Strata Schemes Management Act 2015 (NSW) and its regulations. It is intended for general information purposes only and should not be considered legal advice. For specific legal concerns, consult a qualified strata lawyer.

This post appears in Strata News #734.

Tim Sara
Sara Strata
E: tim@sarastrata.com.au
P: 04 8500 7960