Question: At our AGM a week ago, nominees were taken to fill the 7 council of owners positions. There were approx 35 votes, no decision was reached and we’ve been told it may take a while to work out who is on the Council. Is this a normal part of the process?
At our AGM a week ago, owners nominated to be on council and a vote was taken to decide which nominees would fill the 7 positions on council of owners. There were approx 35 votes and strata advised they could not tell those present who was on council. They took away all the paperwork and we are still waiting today one week later to find out who is on the council.
Can you please advise if the outgoing council is still the council of owners (even though I believe the normal procedure is for that council of owners to resign allowing new nominations to be voted on) or does the strata company take over the running of the scheme until the new council is announced?
If the old council are no longer “in charge” can they still make decisions (e.g. the old treasure/chairman is making financial decisions)
Answer: The current situation does not appear to be in accordance with the provisions of the Strata Titles Act 1985
Election of the Council of Owners is well defined in Schedule 1 By-law 5 of the Strata Titles Act 1985. To give an accurate answer, we’d require more details.
I’ve made some assumptions that:
- An ordinary resolution was passed to set the number of Council members at seven, as per the Strata Titles Act 1985 Schedule 1 By-law 5(1).
- There were seven nominations for the seven Council positions as per the Strata Titles Act 1985 Schedule 1 By-law 5(2), therefore a ballot was not needed as per the Strata Titles Act 1985 Schedule 1 By-law 5(4)(b).
In normal circumstances, and as per Section 4(9)(c) of the Strata Titles Act 1985, members of the Council vacate office at the conclusion of each Annual General Meeting if they are not elected or re-elected when the election of the Council of Owners takes place.
The usual order of proceedings at the item on the AGM agenda about the Election of Council of Owners would be:
- The Chairman declares all positions on the Council of Owners vacant.
- A motion to determine the number of Council members until the next AGM is voted upon (between 3 & 7) – in this case, I’ve assumed that the number of Councillors was resolved by Ordinary Resolution to be seven.
- The chairman receives up to seven nominations for the seven Council positions from those present (either in person or represented by proxy), and then declares those nominees as elected to the Council of Owners as per Strata Titles Act 1985 Schedule 1 By-law 5(4)(a).
What I suspect might have happened is that there were more than seven nominations for Council, and therefore a ballot was (or should have been) held as per the Strata Titles Act 1985 Schedule 1 By-law 4(b).
At that point, it would be prudent and normal to either have a brief adjournment of the meeting so the meeting Chairman can tally the voting as per Strata Titles Act 1985 Schedule 1 By-law 5(7), or the Chairman can appoint another person to tally the voting for them and to report the ballot results later in the same meeting. There is no section of the Act that supports ‘taking away the paperwork’ and declaring a result after the meeting closes.
Being that a new council has yet to be declared, it is likely that the previous Council is still technically in place, but I’d strongly recommend that the author of the query seeks independent legal advice in this instance, as the way the current situation has been described does not appear to be in accordance with the provisions of the Strata Titles Act 1985.
Andrew Chambers
Chambers Franklyn Strata Management
E: andrew@chambersfranklyn.com.au
P: 08 9200 4200
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