WA: The council of owners can’t work together — can we call an EGM to elect a new council even if existing members won’t stand down?

Question: The Council of Owners are unable to work together. We would like to call an EGM to elect a new council. Can the election be held if not all members of the present council are willing to stand down? Everyone is welcome to nominate again, and have their fate decided by the owner’s vote.

Answer: You may require a petition to call the EGM unless the existing members of Council agree that there is a problem and support the need to remove all the Council Members by Special Resolution and re-elect a new Council.

In answer to the question, we have to consider what the Act and By-laws state as the procedure for electing a Council and or the removal of persons from the Council.

From the Act, section 127(3) Annual general meetings of strata company.

3. The following matters must be included as an item of business on the agenda for each annual general meeting of a strata company (including the first annual general meeting) —
   
   1. election of council members;
   2. consideration of accounts;
   3. the presentation of copies of certificates and schedules for the insurance required under this Act, current as at the date of the meeting.

AND

the Governance By-laws [Schedule 1], by-law 4(4)

4. If there are more than 3 lots in the scheme, the members of the council must be elected at each annual general meeting of the strata company or, if the number of lots in the scheme increases to more than 3, at an extraordinary general meeting convened for the purpose.

As you have indicated that the council has become dysfunctional the only options are those provided in the by-laws:

Schedule 1 Governance By-law 4 (8) and (9)

8. Except if the council consists of all the owners of lots in the scheme, the strata company may by special resolution remove any member of the council before the expiration of the member’s term of office.
9. A member of the council vacates office as a member of the council —
   
   1. if the member dies or ceases to be an owner or co-owner of a lot; or
   2. on receipt by the strata company of a written notice of the member’s resignation from the office of member; or
   3. at the conclusion of an annual general meeting of the strata company at which an election of members of the council takes place and at which the member is not elected orre-elected; or
   4. in a case where the member is a member of the council by reason of there being not more than 3 owners of lots in the scheme, on an election of members of the council (as a result of there being an increase in the number of owners to more than 3) at which the member is not elected; or
   5. if the member is removed from office under sub-bylaw (8); or
   6. if the Tribunal orders that the member’s appointment is revoked and the member is removed from office.

To get an EGM up and running may require a petition to call the EGM unless the existing members of Council agree that there is a problem and support the need to remove all the Council Members by Special Resolution and re-elect a new Council.

A lot will depend on the construction of the motions on the removal from office. A Special Resolution will be required to remove any particular member of Council.

Subject to the result of the resolution and accurate recording of the voting and eligibility of the votes cast and validity of proxies received.

I am unaware from the information provided as to how many people are currently on the Council.

Should the situation deteriorate then a SAT Application may have to be lodged.

Shane White
Strata Title Consult
E: shane.white@stratatitleconsult.com.au