NSW: Is it legal to elect a strata committee by poll vote in NSW?

Question: A poll vote was called and our strata committee was chosen by way of unit entitlement, not by owners who wanted to be on the committee. Is this correct?

We’ve just had our AGM. For the first time in our Owners Corporation’s history, a poll vote was called and our strata committee was chosen by way of unit entitlement, not by owners who wanted to be on the committee. I had been a serving member of our Owners Corporation since moving in 9 years ago.

Firstly, is this legal?

Secondly, can anything be done as members of our OC are very upset. Many had served on our committee for years?

Answer: If the number of candidates is greater than the number decided (e.g. there are four candidates but only three positions), then a ballot is required.

The procedure for the election of the strata committee is set out within clause 9 of the Strata Schemes Management Regulations 2016 (NSW) (‘the Regulations’).

In summary:

1. The chairperson announces the names of candidates nominated by owners in writing before the meeting.
2. The chairperson calls for any oral nominations, from those present, of further candidates eligible for election.
3. After the chairperson declares nominations have closed, the owners corporation decides the number of positions available on the strata committee (with a number being proposed, then a vote being taken by ordinary resolution to decide on the number). For example, a person entitled to vote might propose the number be three, and then a vote is taken on that number.

If the number of candidates was equal to or less than the number of positions (e.g. there are four candidates and the ordinary resolution decides there should be four positions), then those candidates are duly elected as the strata committee without the need for a ballot.

If the number of candidates is greater than the number decided (e.g. there are four candidates but only three positions), then a ballot is required. At this stage, the chairperson might invite the candidates to consider withdrawing their nomination to avoid the need for a ballot.

If a ballot is required, the procedure is set out within clause 10 of the Regulations.

In summary:

1. The chairperson must announce the name of each candidate.
2. The chairperson must provide each person present and entitled to vote with a blank ballot paper.
3. The ballot must be signed by the voter and have their writing on it, including:

   1. The names of the candidates (without repeating a name) they wish to vote for. They can only vote for up to the number of positions available (e.g. if there are four candidates and three positions, they can only vote for up to three of the candidates).
   2. The capacity in which they are voting (e.g. as an owner, proxy, company nominee, first mortgagee or covenant charge) and if they are voting as a proxy, they must include the name and capacity (e.g. owner, company nominee etc.) of the person who gave them their proxy.
4. The ballot papers are returned to the chairperson, and votes are tallied for each candidate, usually with the assistance of a scrutineer.
5. The candidates with the most votes are elected until all positions are filled (e.g. if there are three positions, the candidates with the three highest vote counts are elected).
6. If there is one place left, but there are two or more candidates with equal votes, the chairperson will call for a show of hands by those present and entitled to vote, and the candidate with the most votes is elected to fill the final positions.

Lastly, under Schedule 1, clause 14(3) of the Strata Schemes Management Act 2015 (NSW), a poll vote can be demanded by any persons present and entitled to vote on a motion (whereby the outcome is decided based on units of entitlement and not votes per lot). This rule extends to the motion to elect the strata committee. However, it should be noted that a poll vote is only necessary if one is demanded. If it is not demanded, then votes are counted simply on the basis of one vote per lot.

This post appears in Strata News #521.

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