WA: When electing the council of owners, is voting counted by number of people or by unit entitlement?

Question: When electing the committee, how is voting counted? Is the vote decided based upon lot entitlements?

At our last AGM, we had more nominations for the council of owner committee than positions. The election went to a vote. There was a call to have a poll vote. One owner has a large lot entitlement. Using his entitlements, a committee was voted in that was not the popular vote on the night. Is this legal in WA?

Answer: “On an election of the council at a general meeting of the strata company a person who is entitled to vote in the election and who is present in person or by proxy at the meeting may demand that the vote in the election be counted by unit entitlement of the lots”.

Yes, this is legal in WA under Section 135 (3)(a) which states that “On an election of the council at a general meeting of the strata company a person who is entitled to vote in the election and who is present in person or by proxy at the meeting may demand that the vote in the election be counted by unit entitlement of the lots”. Without such a demand then the vote is counted by number.

It is also important to note that Section 132 (2) requires that a person is entitled to vote in order to nominate a candidate to the council of owners. To be entitled to vote the lot must be paid up to date with its strata levies.

The standard Governance by-laws apply to the election process. It is important the by-laws specific to your scheme as the standard by-laws may have been amended, repealed or replaced. Schedule 1 Governance By-law 5 sets out the procedure as follows:

5. Election of council at general meeting

The procedure for nomination and election of members of a council must be in accordance with the following rules —

1. The meeting must determine, in accordance with the requirements of by-law 4(3) the number of persons of whom the council is to consist.
2. The chairperson must call on those persons who are present at the meeting in person or by proxy and entitled to nominate candidates to nominate candidates for election to the council.
3. A nomination is ineffective unless supported by the consent of the nominee to the nomination, given —
   
   1. in writing, and furnished to the chairperson at the meeting; or
   2. orally by a nominee who is present at the meeting in person or by proxy.
4. When no further nominations are forthcoming, the chairperson —
   
   1. if the number of candidates equals the number of members of the council determined in accordance with the requirements of by-law 4(3), must declare those candidates to be elected as members of the council;
   2. if the number of candidates exceeds the number of members of the council as so determined, must direct that a ballot be held.
5. If a ballot is to be held, the chairperson must —
   
   1. announce the names of the candidates; and
   2. cause to be furnished to each person entitled to vote and present in person or by proxy, a blank form in respect of each lot in respect of which the person is entitled to vote for use as a ballot form.
6. A person who is entitled to vote must complete a valid ballot form by —
   
   1. writing on the form the names of candidates, equal in number to the number of members of the council so that no name is repeated; and
   2. indicating on the form the number of each lot in respect of which the person’s vote is cast and whether the person so votes as owner or first mortgagee of each such lot or as proxy of the owner or first mortgagee; and
   3. signing the ballot form; and (d) returning it to the chairperson.

7. The chairperson, or a person appointed by the chairperson, must count the votes recorded on valid ballot forms in favour of each candidate.
8. Subject to sub-bylaw (9), candidates, being equal in number to the number of members of the council determined in accordance with by-law 4(3), who receive the highest numbers (in terms of lots or unit entitlements as required under the Strata Titles Act 1985 section 122) of votes are to be declared elected to the council.
9. If the number (in terms of lots or unit entitlements as required under the Strata Titles Act 1985 section 122) of votes recorded in favour of any candidate is the lowest of the numbers of votes referred to in sub-bylaw (8) and —
   
   1. that number equals the number of votes recorded in favour of any other candidate; and
   2. if each of those candidates were to be declared elected the number of persons elected would exceed the number of persons required to be elected, as between those candidates, the election must be decided by a show of hands of those entitled to vote and present in person or by proxy

Luke Downie
Realmark
E: ldownie@realmark.com.au
P: 08 9328 0999