NSW: Q&A Delegating an Acting Chairperson

A lot owner from NSW is wondering about the rules around delegating an acting chairperson for a strata committee meeting. Andrew Terrell, Bright & Duggan provides the following response.

Question: The chairperson nominated the strata secretary as acting chairperson for a strata committee meeting. I believe this delegation can’t occur unless the chairperson is unable to attend the meeting, which wasn’t the case.

At a recent strata committee meeting, the chairperson nominated the strata secretary as acting chairperson for that meeting. A majority of strata committee members voted for the delegation. When I challenged the delegation of the acting chairperson, I was told you could do so under the Strata Management Act.

Prior to the meeting, I call the Fair Trading call centre. I was told the delegation for an acting chairperson could not occur unless the chairperson was not able to attend the meeting. This was not the case.

So what is the correct interpretation for delegating an acting chairperson?

If the “delegation” was wrong, would that also mean the decision(s) pass at that meeting were invalid & therefore not able to be implemented?

Answer: The Chairperson could not delegate the role of chair to another member is the chairperson was in attendance.

The relevant part of the Act is below (Strata Schemes Management Act 2015 – SCHEDULE 2):

Part 3 – Meeting procedure

8 CHAIRPERSON TO PRESIDE

1. Chairperson to preside The chairperson of the owners corporation is to preside at any meeting at which the chairperson is present.
2.  Presiding member where chairperson absent In the chairperson’s absence from a meeting, the members of the strata committee present at that meeting may elect one of their number to preside at that meeting and the person so elected is, while so presiding, taken to be the chairperson.
3. Chairperson does not have casting vote The chairperson does not have a casting vote in relation to any motion but may vote in his or her own right if otherwise entitled.
4. Chairperson may be only person present A meeting is, subject to the provisions of this Schedule relating to the quorum, validly held even though the only person present at the meeting is the chairperson of the owners corporation.

It’s my advice that the Chairperson could not delegate the role of chair to another member is the chairperson was in attendance (as the Act specifically refers to the Chair being ‘absent’), however if the motions/decisions passed at the meeting were passed by a majority of the committee I don’t believe them to be invalid (as the Act also provides for voting in writing).

I note also SECT 38 of the Act, likely this matter would be considered a defect.

The way around all of this is that the chairperson could resign (in writing in accordance with SECT 45) at the start of the meeting (from their role as chairperson) and then the committee would be forced to appoint a new chairperson (in this case, the secretary), who could then chair and resign.

Acts and proceedings of strata committee valid despite vacancies or defects.

38 ACTS AND PROCEEDINGS OF STRATA COMMITTEE VALID DESPITE VACANCIES OR DEFECTS

1. This section applies if, when any act or proceeding of a strata committee was done, taken or commenced there was:
   
   1. (a) a vacancy in the office of an officer of the owners corporation or any other member of the strata committee, or
   2.  any defect in the appointment, or any disqualification, of any such officer or member. This section applies if, when any act or proceeding of a strata committee was done, taken or commenced there was:

2.  Any act or proceeding of a strata committee done in good faith is as valid as if the vacancy, defect or disqualification did not exist and the strata committee were fully and properly constituted.

45 VACATION OF OFFICE BY OFFICER

1. An officer of an owners corporation vacates office as an officer:
   
   1. if the person ceases to be a member of the strata committee, or
   2. on the receipt by the owners corporation from the person of written notice of the person’s resignation as an officer, or
   3. if another person is appointed by the strata committee to hold that office, or
   4. if the owners corporation, by special resolution, declares that the person’s office is vacated, or
   5. if the person dies.

2. A strata committee is to appoint a person who is a member of the strata committee, or who is eligible to be a member of the strata committee, to fill a vacancy in the office of an officer of an owners corporation, other than a vacancy referred to in section 35 (1) (d). Any person so appointed holds office, subject to this section, for the balance of his or her predecessor’s term of office.

Andrew Terrell
Bright & Duggan
E: [email protected]

This post appears in Strata News #179.

Have a question about acting chairpersons or something to add to the article? Leave a comment below.

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This article is for reference purposes only and is not intended to be a comprehensive review of the developments in the law and practice or to cover all aspect of the subject matter. It 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.

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