This article about whether you can vote if you are unfinancial or in breach of an order has been provided by Gary Bugden OAM, Bugden Allen Lawyers.
Question: We have an unfinancial chairman. What role can he play in a body corporate committee meeting until such time as he becomes financial again? Can he vote?
Answer: The relevant question is when did the member owe the debt?
Assuming their scheme is governed by the Standard Module, Section 10(2)(d) of the Body Corporate and Community Management (Standard Module) Regulation 2008 states that a committee member is ineligible to be a voting member of the committee if the member “owes a body corporate debt in relation to a lot or lots owned by the person at the time voting members are chosen”.
So the relevant question is when did the member owe the debt?
If they owed the debt at the time they were elected as a member of the committee (which is usually at the annual general meeting), then they would not have been validly elected as a voting member of the committee.
If they subsequently become financial that would not change the position – because they were never validly elected to the committee in the first place.
This post appears in Strata News #313.
Question: Is our Treasurer (by proxy) eligible to vote at the AGM and still hold their position as Treasurer if they are in breach of an order made by an Adjudicator in the Commissioner’s office?
I am Secretary of a Body Corporate. We have a Treasurer (by proxy) who has defied a Commissioner’s ruling that they are only allowed to keep one dog, not two, in our complex.
They have continued to defy the Commission’s ruling. Are they eligible to vote at AGMs and still hold their position as Treasurer if they are in breach of the order?
Answer: They are not disqualified from voting at general meetings or being appointed to an executive position on the committee.
A person who is in breach of an order made by an Adjudicator in the Commissioner’s office is not disqualified from voting at general meetings or being appointed to an executive position on the committee, because of that breach alone. If the breach related to an order requiring the payment of a “body corporate debt” (such as a levy or recovery costs), then the body corporate debt (rather than the order itself) would disqualify the person from becoming a committee member and holding that office. It would also disqualify them from nominating someone as a candidate for election to the committee or that office.
If the breach of order occurred after the person was elected to the committee and appointed Treasurer, then the person can continue to hold the executive position and vote at general meetings (even if a body corporate debt was involved). This is because:
- the disqualifying factor did not exist at the time they were elected or appointed to the committee and the position of treasurer; and
- there is nothing in the Regulations which would cause their position to be vacated, or to disqualify them from voting, because of non-compliance with an order (even if the order related to a body corporate debt).
If the person is not the treasurer, but merely the proxy of the treasurer, then the position is more complex because the proxy appointment would need to be renewed by committee vote at each committee meeting and would only last for that meeting. Therefore, the committee itself would be in a position to remove the person as the treasurer’s proxy.
This post appears in Strata News #306.
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This article does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.
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