QLD: Q&A Holding Positions on the Executive and Ordinary Committee

These strata managers and lot owners from QLD have a variety of questions about holding positions on the executive committee and ordinary committee.

Table of contents:

• QUESTION: Can the committee member nomination be reinstated following withdrawal if the Body Corporate’s financial year has ended?
• QUESTION: Can a committee member nomination be withdrawn once submitted?
• QUESTION: Can a committee member resign on the condition that her brother, who is a co-owner, replaces her?
• QUESTION: Given a chairperson’s duties include declaring the results of votes on motions at a general meeting, what are the legal implications, if any, of an employee of the strata manager (ie the community manager) declaring the results rather than the chairperson of the committee who is present and chairing the meeting.
• QUESTION: Can the chairman who was elected at the AGM, resign from the executive position and become an ordinary committee member without first going to a general meeting?
• QUESTION: Our caretaker has been door knocking other owners to try and vote us off the committee as we have questioned his astronomical quotes. He ignores us when we ask for works to be done on our unit.
• QUESTION: I am the only person that has been nominated for the vacant chairperson role by the deadline. Will I automatically be sworn in as Chairperson at our upcoming AGM without any need for a ballot?
• QUESTION: I was excited to be voted in as our Body Corporate Committee secretary only to find I do nothing. I don’t get the correspondence, I don’t even get to read it, I don’t do minutes. Nothing. Is this right?
• QUESTION: We have a committee member who has listed their unit for sale. Do they have to resign from the Committee?
• QUESTION: A Committee Member stands in for and receives payment from the caretakers on a regular basis when they are away. Can they stay on the committee and vote, or is this a conflict of interest?
• QUESTION: Can someone be both executive and ordinary member if they have received the necessary number of votes at the AGM?
• QUESTION: A lot owner who has nominated for holding a position on the executive committee is currently in breaches for non-compliance with by-laws. Is there any way a committee can decline to accept a nomination?
• QUESTION: Some members of the committee do not respond to requests or emails. Can we refuse members from holding committee positions in future based on lack of activity?
• QUESTION: What is the lawful status of the chairman holding multiple positions on the executive committee? At our Residential community scheme, the Chairperson has claimed the roles of both Chair AND Secretary.
• QUESTION: At our recent AGM, our chairman received majority votes (9 votes for all executive positions). Our Body Corporate Managers advised us that it is legal for one person to hold all three positions on executive committee.

Question: Can the committee member nomination be reinstated following withdrawal if the Body Corporate’s financial year has ended?

Answer: A committee member nomination cannot be re-submitted if the financial year of the body corporate has ended.

Nominations must be received by the secretary prior to the end of the body corporate’s financial year.

It has been held by adjudicators in the Commissioner’s Office that a committee member nomination cannot be re-submitted if the financial year of the body corporate has ended.

While an owner cannot reinstate its committee nomination following the end of the body corporate’s financial year, they may make a nomination orally from the floor at the meeting for any vacant committee position.

Alanna Hill
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #505.

Question: Can a committee member nomination be withdrawn once submitted?

Answer: An owner may seek to withdraw their nomination prior to the meeting agenda being finalised and sent to owners.

While the legislation is silent on whether a nomination can be withdrawn once submitted to the secretary, adjudicators in the Commissioner’s Office have held that a nomination may be withdrawn prior to the agenda for the annual general meeting being sent to owners.

An owner may seek to withdraw their nomination prior to the meeting agenda being finalised and sent to owners.

In our opinion, it is also logical that a person can withdraw their nomination at any time before the vote, as otherwise the person would simply resign at the conclusion of the meeting, and the committee would choose a replacement rather than the owners.

Alanna Hill
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #504.

Question: Can a committee member resign on the condition that her brother, who is a co-owner, replaces her?

Answer: Ultimately it is the Committee or the Body Corporate’s decision.

The Standard Module outlines that if a position on the committee becomes vacant, on the basis that there are still enough committee members to form a (quorum) [https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/committees-meetings/committee-meetings/running], the committee vote to appoint an eligible person to fill the vacancy, or if not, or if they wish to, they call a general meeting to choose an eligible person to fill the vacancy.

There is nothing in the legislation relating to conditions of resignation. I would suggest that the committee member discuss with the other members their reasons for resigning, and the brother outline his proposed contribution to the committee, to assist with their consideration of him as the replacement member. Ultimately it is the Committee or the Body Corporate’s decision.

Charlotte Divall
SSKB
E: SSKB
P: 07 5504 2000

This post appears in Strata News #501.

Question: Given a chairperson’s duties include declaring the results of votes on motions at a general meeting, what are the legal implications, if any, of an employee of the strata manager (ie the community manager) declaring the results rather than the chairperson of the committee who is present and chairing the meeting.

Answer: The body corporate manager is engaged to assist the body corporate and can be authorised to carry out some or all of the powers of the committee.

The body corporate manager is engaged to assist the body corporate and can be authorised to carry out some or all of the powers of the committee. This includes assistance to the Chair during a meeting that can extend to reading out the votes at the direction of the Chair.

It’s important to note that when doing this the body corporate manager is not replacing the Chair and on the minutes the Chair is recorded as holding that position for the meeting.

There is a wider question here about the extent to which the body corporate manager should play an active role in the meeting. The need for them to do so will vary from scheme to scheme. At some buildings, the committee may be very engaged in running the building and owners may have a clear idea of how they want the meetings to be run. In that case, the body corporate manager may be a more passive presence whose main function is recording the minutes.

Other sites may be more reliant on the manager as the knowledge-hub for the scheme and require greater direction from the manager to help meetings run efficiently. In those cases it is reasonable for the manager, under the direction of the Committee, to play a more direct role.

See the government website for further details on the role of the body corporate manager: Queensland Government: Body corporate manager

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #500.

Question: Can the chairman who was elected at the AGM, resign from the executive position and become an ordinary committee member without first going to a general meeting?

Answer: Technically this may be possible.

Technically this may be possible. If the Chair resigns, their position becomes vacant and needs to be filled by the Committee within a month or a general meeting has to be held. If the committee appoint an ordinary member as the new chair their position needs to be filled in turn and the committee could appoint the previous chair to that spot. It’s a roundabout way of doing it and depending on the nature of your scheme a general meeting might be a more transparent way of handling the transition.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #468.

Question: Our caretaker has been door knocking other owners to try and vote us off the committee as we have questioned his astronomical quotes. He ignores us when we ask for works to be done on our unit.

Answer: There is no prohibition on a caretaker lobbying or door knocking.

There is no prohibition on a caretaker lobbying or door knocking. If people want to vote you on or off the committee, then that’s their choice.

A caretaker is usually engaged to provide services in relation to common property, so I am not sure why the caretaker would be called upon to do work on your lot. The contractual relationship is between the caretaker and the body corporate, not individual owners.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #461.

Question: I am the only person that has been nominated for the vacant chairperson role by the deadline. Will I automatically be sworn in as Chairperson at our April AGM without any need for a ballot?

Our Chairperson has just resigned from the committee and the next AGM is happening in late April, with regards to a casual vacancy on our committee. Nominations for the chairperson role closed on the 31st of January. I am currently an ordinary member and also have been nominated prior to the 31st of January for the Chairperson role. 

As I understand there have been no other nominations for this role and the current Chairperson has now resigned. My understanding is that as I have nominated by the deadline I will automatically be sworn in as Chairperson at our April AGM without any need for a ballot. Am I correct? If not, what is the correct process?

We are under the accommodation Module/Building Format Scheme.

Answer: If the resignation takes place at the AGM, appointments would be based on nominations. If only one person has nominated for the position, and if they are eligible, then they would be elected on that basis.

It’s not quite clear from the question if the Chair has resigned effective immediately or if that will occur effective at the AGM.

If the resignation takes place at the AGM then, as indicated in the question, appointments would be based on nominations. If only one person has nominated for the position, and if they are eligible, then they would be elected on that basis.

If the Chair has resigned with immediate effect a casual vacancy has been created. Once notice of the vacancy has been received, the Committee has one month to fill the position. They can do this by calling a committee meeting or VOC to appoint a suitable person. The act doesn’t specifically say who that person could or should be, but in most cases you may expect it to be someone who is already a member of the committee and is able to step into the vacant position. However, the Body Corporate also has to ensure that the total number of committee members elected at the AGM is maintained through the whole year. So, for example, if there are five people elected at the AGM, this has to be kept at five for the whole year. If a vacancy arises, and an existing committee member steps into the vacant position, then this opens up an Ordinary Member spot, and they still have to find a new person to fill that spot.

Lastly, if the resignation of the committee member means a quorum can no longer be reached or the committee cannot reach agreement within a month a general meeting should be called to appoint a new member.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in the March 2021 edition of The QLD Strata Magazine.

Question: I was excited to be voted in as our Body Corporate Committee secretary only to find I do nothing. I don’t get the correspondence, I don’t even get to read it, I don’t do minutes. Nothing. Is this right?

I was excited to be voted in as our Body Corporate Committee secretary only to find I do nothing. I don’t get the correspondence, I don’t even get to read it, I don’t do minutes. Nothing. Is this right? 

If the Body Corporate Manager does it all then why is there a need for the committee to have a secretary position at all? If this is the case with all normal committees, why isn’t the Body Corporate Manager automatically the secretary instead of someone holding a title with no job?

Answer: The way in which committee members interact with their body corporate manager can vary considerably from building to building.

The way in which committee members interact with their body corporate manager can vary considerably from building to building depending on the needs of your scheme.

Most agency agreements delegate a number of secretarial duties to the body corporate manager (BCM). Typically these include providing assistance with routine correspondence, arranging meetings and issuing minutes. It depends on how your scheme is organised but if historically the committee has been happy for the BCM to do that work then your manager is probably continuing with that structure.

If you want to take on a more direct role, that is your right. The best next step would be to contact the manager and discuss what they are doing and what you would like them to do to establish a new equilibrium.

Generally, the key functions of the secretary are:

• Sending out notices for meetings.
• Asking for and receiving nominations for committee positions before an annual general meeting. If a notice inviting nominations is forwarded to lot owners, the secretary must also invite owners to submit motions for the meeting.
• Making the ballot papers for the committee election, and sending them and the other material with the meeting notices.
• Having the following available for viewing by voters at a general meeting:
  
  • the roll
  • a list of the persons who have the right to vote at the meeting
  • all proxy forms and voting papers
  • Receiving the completed voting papers for a general meeting.

• Receiving the completed proxy forms for general and committee meetings.

The secretary also often takes minutes of meetings, although the legislation does not require them to.

So there is a defined position and requirement for this role. It’s not a requirement to have a body corporate manager but the work of all committee members can be complex and time consuming leading to most schemes appointing a manager to assist.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in the February 2021 edition of The QLD Strata Magazine.

Question: We have a committee member who has listed their unit for sale. Do they have to resign from the Committee?

Answer: Listing the property for sale is not the same as having sold it.

No, they don’t. Listing the property for sale is not the same as having sold it. If they do sell then at the point they cease to be an owner, they cease to be eligible to be on the committee. They don’t need to resign: they simply stop being eligible.

Bear in mind, though, that they could still be someone’s representative and thus still be part of the committee. It can and does happen.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #424.

Question: A Committee Member stands in for and receives payment from the caretakers on a regular basis when they are away. Can they stay on the committee and vote, or is this a conflict of interest?

The on-site Caretakers are on Contract to the Body Corporate Committee. The complex has 150 Villas. When they go away for weeks at a time, a Resident looks after the Complex, mowing etc., and is paid by the Caretaker.

The Resident is on the Committee. My understanding is the Resident can stay on Committee, but can’t vote, as it is a conflict of interest, or he is classed as an associate of the Caretaker.

Answer: Section 10(2) of the Standard Module does indeed provide that someone is ineligible to be voting member if they are an ‘associate’.

You’re right in that if someone declares a conflict of interest as a committee member, they are not entitled to vote on a motion involving that issue – refer s53 of the Standard Module.

What you’re talking about, though, is someone not being eligible to be a voting member of the committee because they are an associate of the caretaker. That’s a different issue. Section 10(2) of the Standard Module does indeed provide that someone is ineligible to be voting member if they are an ‘associate’.

The potential meaning of ‘associate’ is set out in section 309 of the Act and contemplates several scenarios, one of which is a ‘fiduciary relationship’. I’m not willing to be definitive and say that there is a ‘fiduciary relationship’ and that this person is an ‘associate’, as it always depends on circumstances and I’ve seen plenty of disputes on that topic. What I would say is that if there is concern about the situation then legal advice should be sought to clarify.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #398.

Question: Can someone be both executive and ordinary member if they have received the necessary number of votes at the AGM?

At our last AGM I nominated for Chair and ordinary member. I am now chair.

I received the 3rd highest number of votes for ordinary member as well. The current Treasurer received the 4th highest for ordinary member.

Can we be both executive and ordinary members based on the votes at the AGM?

I understand that it is possible for one person, based on the votes, to hold all 3 executive positions. The votes ranged from 26 to a low of 9 for ordinary members. On both counts, I received 24 votes.

Answer: A person cannot be elected as both an executive member of the committee and as an ordinary committee member.

A person’s nomination for a position as an ordinary committee member is of no effect if that person has been elected as an executive member of the committee (even if that person’s name appears on a ballot for ordinary members).

This means that a person cannot be elected as both an executive member of the committee and as an ordinary committee member.

Therefore, if the votes are received in favour of anyone elected as an executive member, those votes must not be considered when determining the election of ordinary members of the committee.

This post appears in Strata News #331.

Peter Hunt
Mathews Hunt Legal
E: [email protected]

Question: A lot owner who has nominated for holding a position on the executive committee is currently in breaches for non-compliance with by-laws. Is there any way a committee can decline to accept a nomination?

A committee of a 16 lot scheme has had an AGM which has been adjourned and has 6 nominations for the Committee members (including the chairperson, treasurer and secretary).

The committee doesn’t want to accept one nomination because of breaches for non-compliance with by-laws.

Can they decline the nomination if the nominating person is currently in breach? The code of the conduct would be in breach as well.

Is there any way a committee can decline to accept a nomination?

Answer: Only when they are unfinancial can something be done. You cannot reject a nomination for this.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #321.

Question: Some members of the committee do not respond to requests or emails. Can we refuse members from holding committee positions in future based on lack of activity?

I am in Queensland part of small body Corporate as secretary.

There are only 6 units in the group and we have 4 committee members. The issue is when there is a decision to be made or account approval and the Body Corporate manager sends emails for approval, only two ever respond which is not enough.

Can we refuse members from holding committee positions in future based on lack of activity, as it is extremely frustrating?

Answer: Unfortunately not.

Unfortunately not – owners have the rights to appoint themselves on the committee.

But if the committee holds physical meetings and an attendee does not attend twice in a row without the committee’s approval, the committee member is removed from their position.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #249.

Question: What is the lawful status of the chairman holding multiple positions on the executive committee? At our Residential community scheme, the Chairperson has claimed the roles of both Chair AND Secretary.

At our Residential community scheme, 7 people are on Committee and vote.

The Chairperson has claimed the roles of both Chair AND Secretary.

A different person is the Treasurer. In addition, there are 5 ordinary committee members.

This equates to 7 voters but 8 positions.

What is the lawful status of the chairman holding multiple positions on the executive committee?

Answer: The required number of voting members is based on people, not positions.

This is fine. The module provides:

The one person may hold the positions of chairperson, secretary and treasurer, or any 2 of the positions, in conjunction.

The required number of voting members is based on people, not positions.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #228.

Question: At our recent AGM, our chairman received majority votes (9 votes for all executive positions). Our Body Corporate Managers advised us that it is legal for one person to hold all three positions on executive committee.

I am an ex-treasurer for a body corporate in Queensland. At a recent AGM, both myself & the secretary had nominated ourselves for re-election. However, the chairman received majority votes (9 votes for all executive positions). Our Body Corporate Managers advised us that it is legal for one person to hold all 3 positions on the executive committee.

My understanding is that ordinary committee members can be elected in order of votes received. Can you please advise if this view is still valid in cases of nominations received for these positions, or only valid in case of no nominations received?

The Chairman has been holding all positions on the executive committee for the past few years and makes it difficult for others to participate and resolve issues within the complex.

Any guidance would be greatly appreciated.

Answer: One person can hold all executive positions. If they get the votes, they get the votes.

Two things:

1. One person can hold all executive positions. If they get the votes, they get the votes.
2. Ordinary member wise, if there are four or fewer nominations before the close of nominations they are all simply elected. If there are more than four, then it is most votes received on the ballot, and it is basically optional preferential voting. Owners could vote for all candidates or just two. It is up to them. If all owners voted for every candidate the final four spots would be decided a method of chance at the meeting. I have been at them where we have tossed coins and drawn straws to decide who gets in.

And remember the chairperson is only one vote – not three. If there are one executive member and four ordinary members, there are only five votes. And if four are against the chair, then….

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #190.

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