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?
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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?
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.
Have a question or something to add to the article? Leave a comment below.
Gary Bugden
Partner
Bugden Allen Lawyers
M: 0412 046 966
E: [email protected]
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.
Read Next:
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- QLD: Q&A Process to appeal the refusal for a pet
- QLD: Is it defamatory to call someone unfinancial?
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Gary. I thank you for identifying the applicable section in your answer “when did the member owe the debt”. I am confident that more and more unit owners are accessing primary sources of information eg the actual legislation. Being shown where to find the legislative authority, or judicial determination (including those by Adjudicators) for a commentator’s statement is most welcome and beneficial. Should be more of it, from all contributors to this wonderful platform we call LookUp.
To the person leaving this complaint about the committee member.
In the first place you cannot rule unreasonably against the keeping of pets whether there are one, two or three of them! You need to get up to date with our more modern guidelines for living in harmony in strata and not project your own prejudices on others PARTICULARLY If those pets are not causing any disturbance to you or others in the strata.
Mind your own business and get on with your own life and leave others alone – this behaviour is bullying to pet owners and needs to be stamped out.
passionate animal lover.
“[…] …they have continued to *deify* the Commission’s ruling. […]”
How could any treasurer stoop so low as to do such a dog..err..*god (l)awful* thing?
It doth simply deify..err..defy all dogic..err..logic.
Thanks for alerting us to the typo.