Question: After concerns about the previous council of owner election, owners requested an ex-council member act as a scrutineer. We were told an owner couldn’t act as a scrutineer. Is this correct?
At the first AGM of our strata company, most members of the previous advisory panel were elected to the council of owners. Some owners were concerned about the validity of the count. It was carried out by the strata manager in secret with some unexpected results.
At the next AGM, owners asked for and selected an ex-council member to act as a scrutineer. We were told that an owner couldn’t act as a scrutineer, therefore, the vote went ahead, again with unexpected results. Can an owner act as a scrutineer?
Answer: If the meeting agrees to appoint a scrutineer, there is no reason why an owner can’t be appointed, so long as the owner is not also a candidate in the election.
A scrutineer generally acts for a candidate in an election to scrutinise the voting and vote counting. Government election scrutineers are appointed under the legislation, and at corporation or club elections, scrutineers are appointed under their constitution’s provisions.
The Strata Titles Act 1985 (WA) (‘Act’), the Strata Titles (General) Regulations 2019 (‘Regulations’) and the Schedule 1 default by-laws do not provide for scrutineers in council elections. There is provision for an independent vote counter in the Regulations, but only regarding voting on proposals to terminate the strata scheme. Schedule 1 by-law 5(7) allows the chairperson or a person they appoint to count the votes. In your case, the strata manager was appointed, but you don’t seem to have confidence in them.
First, you should obtain a copy of your by-laws to check whether they contain anything concerning scrutineers. If your by-laws provide for a scrutineer, you can ask the chairperson at the next AGM to follow the scrutineer procedure in the by-laws.
If there is nothing in the by-laws concerning a scrutineer, you have the following options:
- You can propose a by-law providing for a scrutineer in council elections. However, such a by-law will have to be passed by a resolution without dissent.
- The chairperson can be asked under governance by-law 5(7), if it applies to your strata company, to appoint someone impartial to count the votes.
- The chairperson of a meeting is bound by the by-laws, the Act and the Regulations, but beyond that, has the power to decide upon the procedure at the meeting. Where the Act, Regulations and by-laws are silent on the appointment of a scrutineer the chairperson likely has the power to appoint a scrutineer if asked to do so by the meeting.
- The owners voting at the meeting can all waive their rights to a secret vote and allow every vote to be made public.
If the meeting agrees to appoint a scrutineer, there is no reason why an owner can’t be appointed, so long as the owner is not also a candidate in the election.
Eduard Ferreira Douglas Cheveralls Lawyers E: eduard@dclawyers.com.au P: 08 9380 9288