QLD: Q&A Holding Positions on the Executive and Ordinary Committee

For the standard and accommodation modules, when a committee member resigns, the remaining committee members have 30 days to appoint an eligible person to fill the vacancy. After that, an EGM should be held to appoint a new member.

In your circumstances, the committee could have a committee meeting notice issued, a member could resign, a VOC could be held to appoint a new member, and the meeting could be held with that new person in place.

As you had three members, it’s also possible that the committee meeting could go ahead. Provided the other two attended, there would still be a quorum, and the meeting could proceed. Perhaps a replacement committee member could be appointed at the meeting.

More generally, if a committee is a member short due to one member resigning, the advice is that the committee should carry on but look to hold off on any major decisions until a full committee is appointed. This is not always possible, but the business of the body corporate needs to go on, and at some stage, decisions have to be made. The timelines for calling meetings and making appointments don’t always fit into this structure, so you have to fall back to the reliable standard of making reasonable decisions and move ahead as best you can.

Things get a little more difficult if no one wants to be on the committee. You are supposed to have three members in the standard and accommodation modules. If three can’t be appointed, you are supposed to consider engaging a body corporate manager under a part 5 agreement – one where the manager fills the roles of the committee. However, these can be expensive, and people don’t usually want to hand over control of their scheme.

In reality, many schemes soldier on with one or two committee members, even if this doesn’t align with the legislation. We find that doing things this way is not a problem until it is, and then the problem can become outsized. Schemes may run smoothly for years with only one or two members, but it can be hard to turn the ship around when there is an issue. As such, if a committee can’t fill the vacancies, it is probably worth contacting all owners and advising them of the risks of not having a valid committee. Someone will usually sign up, even if only to fill the technical requirement while not contributing much else.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #674.

Question: If a member has not attended two consecutive committee meetings, spanning two financial years, can we remove this committee member from their position due to non attendance?

In a previous Q&A, Frank Higginson from Hynes Legal stated that if the committee holds physical meetings and an attendee does not attend two consecutive meetings without the committee’s approval, the committee member is removed from their position.

In our committee, a member has not attended two consecutive committee meetings. Although consecutive, the meetings were not in the same financial year. One committee meeting was before the AGM, and another one month later, after the AGM. Can we remove this committee member from their position due to non-attendance?

Answer: Missing one meeting from the former year and one from the current year is just one meeting missed.

My gut feeling would be that it is two consecutive meetings of the committee for that year. That would mean missing one meeting from the former year and one from the current year is just one meeting missed – not two.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #673.

Question: Can an owner not present at the meeting be elected as an ordinary member?

When there are not enough nominations for the ordinary committee at the AGM and the chair calls for nomination from the floor, can an owner who does not attend the meeting be elected as an ordinary member?

Answer: If someone isn’t at the meeting, they cannot be elected from the floor of the meeting.

Section 38(2) of the Standard Module (equivalent provisions of other Regulation Modules) provides that the person chairing the meeting ‘…must invite nominations at the meeting’. Therefore, it seems clear that if someone isn’t at the meeting, they cannot be elected from the floor of the meeting.

Updated Answer: Since the original post, we have reflected on our response – and had some feedback from a reader – and would like to clarify that section 38(4) of the Standard Module (equivalent provisions of other Regulation Modules) might also come into play here, to allow for those not physically present to also be nominated.

As always, each individual case will be dependent on its facts and this is not intended to be legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #668.

Question: Our body corporate overwhelmingly voted no to a top up of the caretaker’s agreement. Our committee seems determined to overturn the vote. This has created a toxic environment, and residents believe the committee should concentrate on other matters. How do we get back on track?

I live in a strata development of 110 units in Qld, ruled by the Accommodation Module. Recently, there was a motion at the AGM to top up the caretaker’s agreement to 25 years. The body corporate overwhelmingly voted ‘No’ (70 No vs. 14 Yes). The new committee is now emailing residents saying this was incorrect. They seem determined to overturn the vote.

Many residents understand they can put forward a motion at the next AGM. However, this behaviour has created a toxic environment, and many residents believe the committee should concentrate on other matters. In other situations, the committee won’t proceed with works, despite the body corporate voting yes. Correspondence sent to the committee seems to get ‘lost’ and is never minuted. How do we move forward, and what can residents do?

Answer: If enough owners are unhappy with the committee, you could look to replace them.

If enough owners are unhappy with the committee, you could look to replace them. Committees are replaced the same way they are appointed – via a general meeting. As the committee sounds unlikely to call one to dissolve itself, owners can force a general meeting by having 25 per cent of owners sign a document requisitioning a meeting and including motions for submission.

The notice should be submitted to the Secretary or the body corporate manager as their delegate, and a meeting notice must then be issued within 14 days.

A scheme of 110 owners needs 28 owners to agree to this proposal. This is quite a large number, so you would probably need to get a copy of the roll to contact owners to get some agreement. Perhaps you could collate votes through a website like iPetitions.

You will also need a group willing to fill the current committee positions. The motion for replacement can be relatively straightforward – something like ‘That Ms Jones replace Mr Smith as Chair of the Body Corporate Committee’. You don’t need to explain why you want to change, although as you are looking for a large number of members to back you, I suggest you have a clear rationale.

The alternative is probably to wait until the next AGM and look to appoint new members then.

Regarding the discussion on the caretaker’s contract, any owner can, as you say, submit a motion for the AGM. However, it seems like you have a large majority voting in one direction, and my guess is it would take quite a lot to turn this around. Certainly, the actions of the current committee don’t seem to be doing that, so the choices here seem odd from the outside, although perhaps there is another side to the story.

Regarding other works, the committee has a mandate to proceed if they have been approved at a general meeting. Perhaps there is some wiggle room around dates or booking contractors. However, if they are not proceeding, you can follow the avenues available – table letters at committee meetings, submit an owner’s motion, and, if necessary, make an application via the Commissioner’s office.

It is also worth asking if anyone has sat down with the committee and talked to them about how you feel the body corporate is being run. It is certainly unusual to have such a disconnect between owners and committee and it is not healthy for a scheme to have this division. The above gives you an idea of some of the formal paths, but it’s always worth seeking an amicable resolution via discussion as a first option if possible.

See the BCCM website for more info: Queensland Government: Calling an extraordinary general meeting.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #664.

Question: At a recent committee meeting, lot owners attended but were not allowed to ask questions, even after general business. Is this correct?

Answer: If your committee doesn’t want dialogue at committee meetings, there could be good or bad reasons for it.

Technically, a committee meeting is between committee members, so if a committee wants to, it doesn’t need to accept comments from the floor.

In that situation, if an owner wants to have their voice heard, they should submit correspondence before the meeting to the committee requesting that it be tabled at the next meeting or submit a committee motion.

Practically, healthy schemes have good communication between the committee and owners. I think most committees aren’t opposed to owners participating in the meeting, provided they add something useful to the conversation.

If your committee doesn’t want that dialogue at committee meetings, there could be good or bad reasons for it.

On the bad end, they could be unnecessarily autocratic and in that situation, you might look at having new members voted in when the chance arises to change the committee’s culture.

Perhaps, though, they have these rules to help control committee meetings. Maybe there are difficult owners who disrupt meetings, or the committee simply wants the meeting to move forward as efficiently as possible. Maybe you could speak to some of the committee members outside of a meeting about why they don’t allow comments. This will give you an idea of where things stand and go from there.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #657.

Question: As an owner of a single lot, am I able to nominate myself, plus another owner, to the committee? I’d like to change the chairperson without losing my spot on the committee.

I am an owner in a block of nine villas with a professional strata manager. There is an elected committee of five owners, and I am an ordinary committee member. I will nominate myself for appointment as an ordinary committee member again at the upcoming AGM.

Am I only able to nominate one person for the committee? As no one else is likely to nominate me, I need to nominate myself as an ordinary committee member, but I also want to nominate another owner for the position of chairperson. How do I do this?

If I’m not able to make two separate nominations, how can I change the current chairperson without losing my position as an ordinary member of the committee?

Answer: It may not be too important to focus on who is chair and more on getting numbers appointed to the committee.

If you own a single lot on the scheme, you can only nominate one person. You have a choice between nominating yourself and nominating your preferred candidate as chair.

If you own two lots, you can nominate two people.

If an owner has three or more lots, they can nominate up to three people if the scheme has more than seven lots or two people if six lots and under. This is to limit one owner who owns multiple lots from forming a majority committee.

However, as owners can self-nominate, the easiest thing is if each lot nominates its candidate. So, if you self-nominate and your preferred candidate from another lot self-nominates, you will both be on the ballot. If your preferred candidate is not an owner, another lot will have to make that decision over who they nominate.

One thing to bear in mind is that the committee can have up to seven members. You have nine lots, so the likelihood is that most people who want to be appointed will be. At worst, in an election, there is a small chance of missing out. When formed, the committee is run by majority decision. Chairs often take an oversized role in committee affairs, but this shouldn’t or doesn’t have to be the case. As such, it may not be too important to focus on who is chair and more on getting numbers appointed to the committee.

See the BCCM website for more on nominations: Nominations and eligibility for body corporate committees

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #651.

Question: An owner nominated another owner for a committee position leading up to our AGM. They’ve now sold their lot. The scheduled settlement date of the property is 11 days before the AGM. Is the nomination valid?

Answer: If an owner makes nominations then sells before the meeting, those nominations would no longer be valid.

Any nominations would have to be valid at the time of appointment – the meeting. So if an owner makes nominations then sells before the meeting, those nominations would no longer be valid.

The handling of the situation may depend on how hot the competition for committee places at your scheme. Owners can self-nominate for committee positions, so you may allow the nominated owner to self-nominate and they can join the committee and everyone is happy.

That nominated owner could also self-nominate from the floor at the AGM. If you don’t have all committee positions filled, or everyone is generally happy with the nominated owner, then I think you can be relaxed about the process. However, if you have some discord among owners or there is a vote for committee positions, then sticking to the letter of the law is the fairest way to deal with all parties. This may mean the nominated owner misses out. It happens and next time around they can self-nominate to avoid this circumstance.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #640.

Question: The partner of an owner is the self appointed committee ‘leader’. We are wondering how we politely remove them from this position. Where do we start?

Our body corporate committee has a self appointed ‘leader’. They are not an owner, but the partner of an owner. The owner has given this person their rights.

The partner has been head of the committee for approximately 6 years and we’re wondering how we politely remove them from this position. What is the first step? A petition amongst the owners?

Answer: Anyone can be removed from a committee role by an ordinary resolution at a general meeting. You don’t need to give reasons.

There is no such thing as ‘head’ or ‘leader’ of a committee. There are executive positions, and a chairperson, although that role does not have a veto power or any other special powers. Anyone can be removed from a committee role by an ordinary resolution at a general meeting. You don’t need to give reasons. To get a general meeting called, you need signatures from at least 25% of owners.

Remember, the grass is not always greener, so you need to be sure that whoever you might want to replace them with is ready, willing and able for the challenge of the role.

This response is not legal advice. It is general information. Please seek qualified legal advice if you require specific advice on a strata matter.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #636.

Question: We’ve had a year of disagreement and upsets between owners and committee members. At the upcoming AGM, moves may be made to replace committee members. Can voting be kept anonymous?

We’ve had a year of disagreement and upsets between owners and committee members. At the upcoming AGM, moves may be made to replace committee members. Under the current system, voting papers are returned in an envelope showing the lot number of each vote. To keep the meeting as calm as possible and hopefully result in a better outcome, can voting be kept anonymous?

Answer: The Committee could make a decision to hold the upcoming committee election at the AGM by secret ballot if they believe that this will help the smooth running of the scheme.

Under the standard and accommodation modules, the default position of the legislation is that committee elections should be held by secret ballot.

Body Corporates can vote to change this at a general meeting to an open ballot and over the years many (probably most) have done so as usually the committee election is not controversial and the process of running an open ballot is far easier than running a secret ballot.

The logical extension of that process is that if the body corporate wanted to go back to having committee elections by secret ballot, a motion should be passed to at a general meeting approve this.

However, that would require an EGM and in your case maybe there isn’t time to do this before the AGM. It could also be expensive, time consuming and maybe just as controversial as the decisions you have to make at the AGM. On that basis, the Committee could make a decision to hold the upcoming committee election at the AGM by secret ballot if they believe that this will help the smooth running of the scheme.

Obviously, we would advocate and hope that all owners should be entitled to vote freely without any recrimination but we know that real life doesn’t always work that way so maybe a secret ballot is the best option in the circumstances. There is some possibility that this decision could be disputed, but no one is being denied a vote by holding it in secret so it would be hard to say the committee has made an unreasonable decision if there is evidence that the open election was causing sufficient dispute to warrant holding it in secret.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #632.

Question: Two committee members have missed two meetings with no proxy or explanation. Should they be given a right of reply? If they show up for the next meeting, are they still on the committee?

At our last meeting, two committee members were voted off the committee due to missing the previous two meeting with no apology or proxy. The committee also voted to give them a right of reply. We are now two weeks out from our next committee meeting and the Strata Manager has finally tracked the two members down and states that they have a right of reply.

The two committee members have made no contact with the Secretary at all.

Is there a time frame to allow a right of reply?

Are they still considered committee members if they show up at the next committee meeting or do they have to be voted back in after their right of reply?

Answer: At the time the member doesn’t show up at the second meeting without proxy or leave, their position becomes automatically vacant.

The legislation is pretty clear in how it deals with absentee committee members. The standard module states:

A member’s position becomes vacant if the member is not present personally, by proxy or by any electronic means authorised by a resolution of the committee, at 2 consecutive meetings of the committee without the committee’s leave.

At the time the member doesn’t show up at the second meeting without proxy or leave, their position becomes automatically vacant.

As Committee members they are supposed to have a reasonable understanding of the act so this should be no surprise to them.

In the instance of a casual vacancy, the Committee has 30 days to appoint a replacement. If it cannot do so in that time, an EGM should be called to fill the vacancy.

That’s the theory.

Is there wiggle room around that? Well, you’ve asked for an explanation so that implies the committee might exercise it’s right to give leave. Ideally, you might have given a time frame in which to respond, but even if you didn’t, I think you can fall back on the standard of reasonability. A week seems like a reasonable time frame. Maybe two if you are generous.

As it stands though, the two members are apparently prepared to offer a rationale. They are separate individuals so they may well be different rationales. Would it hurt to hear these? Maybe hear them out and then the remaining members can vote to see if they should remain on the Committee. If yes, they can stay on. If not, then move to removal and reappointment.

Are there holes in this method? Legislative absolutists might feel that the Committee members are automatically disqualified at the time of the second meeting. Others might question at what time the Committee members vacated their positions and when the 30 day period was triggered. There may not be a definitive answer to these points. Committees are appointed to help the scheme make reasonable decisions. Listen to what the members have to say, think through the decision and record why it was made. Sounds reasonable to me.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #624.

Question: Our treasurer is the go-to person that organises the work around our building. How do I find out if he has assumed this position or if he was elected?

Our complex consists of 10 units. Our treasurer is the go-to person that organises the work around our building.

I have asked him if he is self-appointed or if he was voted in, however, he has not responded. I am trying to find out what other position he would hold besides being the treasurer. How could I find this information?

Answer: You would find out through body corporate records.

You would find out through body corporate records, such as minutes of the annual general meeting. As an owner you are entitled to search records and obtain copies. You do this search through your body corporate manager, if you have one, or through your secretary.

That, of course, presumes that (a) meetings have been held and (b) minutes have been made and kept as they are meant to be made and kept. If either (a) or (b), or both, have not occurred in your situation, then something is amiss as it is not an option for someone to simply assume a committee position or declare themselves to be Treasurer. People are either elected to the positions, at an annual general meeting, or appointed as a casual vacancy.

Your scheme may need an administrator appointed, if no committee members have been validly appointed, or there are no records being kept.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #612.

Question: What are the legal responsibilities of the executives on the committee of a strata complex?

Answer: The responsibility is to act reasonably.

Fulsomely answering your question would likely take several days, if not weeks. Each executive member of the committee does different things in different situations. For example, a secretary has an administrative role in dispatching and receiving notices for a meeting, but the chairperson (usually) chairs it.

If you’re looking for a single, overarching responsibility for the executive committee, then in Queensland, that responsibility is to act reasonably. That is required by legislation and means different things in different situations.

Perhaps you have a specific scenario in which committee responsibilities are at issue?

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the October 2022 edition of The QLD Strata Magazine.

Question: Our treasurer resigned, but stated he would remain on the committee. Does the former Treasurer require a Committee vote to remain on the Committee as an Ordinary Member?

A seven-member committee was elected at our AGM with Executive positions held by 3 individuals. The person elected as Treasurer resigned but ‘declared’ he would remain on the Committee as an Ordinary Member. Is this singular declaration of Committee membership allowed by the legislation?

The Committee later appointed one of the Ordinary Members as Treasurer by majority vote. Does the former Treasurer require a Committee vote to remain on the Committee as an Ordinary Member?

Answer: The treasurer was appointed as treasurer only, so if they resign from that position they are off the committee.

Sometimes a minor change on a Committee can get complicated.

The treasurer was appointed as treasurer only, so if they resign from that position they are off the committee.

However, the ordinary committee member can then be voted to replace the treasurer, and as you now also have a committee vacancy there is no reason why this can’t be filled by the old treasurer by a vote at the same time.

These decisions can be ratified at a Committee meeting or a VOC and the Committee has the power to do this within 30 days of the resignation. Even though there may be agreement among the committee about the changes, the official voting is required – neither the Committee nor its individual members can unilaterally make a decision of this kind.

Your body corporate manager should be able to help you put together the motions to affect the changes you want.

You can read more about Committee elections on the BCCM website: Electing Committees

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #570.

Question: Committee members have contacted one of the two nominees for a committee position, asking them to stand down so the incumbent Treasurer can continue on. How is this fair?

I am an Ordinary Member of the Committee. There are 2 nominations for the position of Treasurer for our upcoming AGM voting. Members of the Committee have contacted one of the nominees and asked them to withdraw their nomination so that the incumbent Treasurer can continue in the position of Treasurer.

I do not agree with this. Is there any legislation that prevents committee members from acting this way? I think it is unethical and intimidating and if it continues, harassment.

Answer: The current Committee will have their reasons for wanting the current Treasurer to be re-elected and possibly believe that it is in the best interests of the body corporate.

There is nothing to prevent the Committee approaching owners with their own opinions on any matter. For current Committee members there is a Code of Conduct in accordance with the Body Corporate and Community Management Act 1997 Schedule 1A Code of conduct for committee voting members. Whilst this includes acting honestly and fairly, in the body corporate’s best interests, and not causing a nuisance on scheme land, whether these apply in this case will depend on your viewpoint.

The current Committee will have their reasons for wanting the current Treasurer to be re-elected and possibly believe that it is in the best interests of the body corporate. Even if there is breach of the Code of Conduct the process to remove members is not a quick one and there is an AGM coming up where the Committee will be elected. The nominee being asked to withdraw can simply decline and choose not to discuss it any further if approached.

Charlotte Divall SSKB E: cdivall@sskb.com.au P: 07 5504 2000

This post appears in Strata News #548.

Question: Are there any changes to the number of committee members a body Corp can have in Queensland? Have I read somewhere that it was 7 but it had been changed to 12. Is that correct?

Answer: The legislation states that standard and accommodation schemes can have up to seven committee members. However, the confusion here may be with layered schemes which can have up to 12 members.

There have not been any changes to the regulations around committee members. As you indicate, the legislation states that standard and accommodation schemes can have up to seven committee members. However, the confusion here may be with layered schemes which can have up to 12 members.

As per the BCCM website:

Number of voting members:

The regulations say that a body corporate committee, other than a minor committee, must consist of at least 3 voting members and not more than the ‘maximum number’ of voting members for the committee.

The maximum number of committee members for schemes that have:

7 or more lots is 7

fewer than 7 lots is the number of lots.

Meanwhile,

Layered scheme committees:

A principal scheme in a layered arrangement of community titles schemes with more than 7 lots can increase the maximum number of voting committee members from 7 to a maximum of 12 members by passing a motion by ordinary resolution.

What is a layered scheme?

A layered scheme is defined as a ‘grouping of community titles schemes, where one body corporate sits within the umbrella of another body corporate’.

You can find out more about them here: What is a Layered Scheme?

If you are in a layered scheme and aren’t sure how they work, you should ask your body corporate manager or Committee representative for some information.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #544.

Question: Can committee members be removed by a Vote of No Confidence?

A unit owner posted a motion at an EGM to remove three committee members for reasons other than code of conduct. The motion was defeated.

I believe that the motion was out of order because the explanatory notes stated, “are leaving the Committee in a state of uncertainty given their non-transparent conduct. There is no confidence in their governance. It is in the best interest of the Body Corporate that the named Committee members be replaced”

I believe this relates to Code of conduct for committee item 3 and should have been addressed that way.

The motion was defeated anyway and we have an AGM in approximately 3 months, I would like to know if my thinking was correct.

Our complex is under an Accommodation Module.

Answer: While I know that in other governance frameworks the concept of a ‘vote of no confidence’ is reasonably commonplace, there’s no such thing under body corporate legislation.

There are 2 methods for removing a committee member. As you note, one of those methods is for an alleged breach of the code of conduct. Utilising that method is very involved, requiring a prescribed process to be followed.

The other method is removal by an ordinary resolution. No reason is required.

In your scenario, I can see why you’d have queries about the motion put up to remove you. The extract of the Explanatory Note you provide is, to put it mildly, all over the place. While I know that in other governance frameworks the concept of a ‘vote of no confidence’ is reasonably commonplace, there’s no such thing under body corporate legislation. Putting all that to one side, strictly speaking, unless the motion follows the prescribed code of conduct removal process (s37 of the Accommodation Module), then I think it would be considered a motion under the other, simpler method.

There is, of course, a whole other issue here about whether this same submitter will be agitating for your non-election at the AGM, having been thwarted once already in seeking your (and others) removal. I’ll assume you have that one in hand…

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #525.

Question: Can the committee member nomination be reinstated following withdrawal if the Body Corporate’s financial year has ended?

Answer: A committee member nomination cannot be re-submitted if the financial year of the body corporate has ended.

Nominations must be received by the secretary prior to the end of the body corporate’s financial year.

It has been held by adjudicators in the Commissioner’s Office that a committee member nomination cannot be re-submitted if the financial year of the body corporate has ended.

While an owner cannot reinstate its committee nomination following the end of the body corporate’s financial year, they may make a nomination orally from the floor at the meeting for any vacant committee position.

Alanna Hill Mathews Hunt Legal E: alanna.hill@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #505.

Question: Can a committee member nomination be withdrawn once submitted?

Answer: An owner may seek to withdraw their nomination prior to the meeting agenda being finalised and sent to owners.

While the legislation is silent on whether a nomination can be withdrawn once submitted to the secretary, adjudicators in the Commissioner’s Office have held that a nomination may be withdrawn prior to the agenda for the annual general meeting being sent to owners.

An owner may seek to withdraw their nomination prior to the meeting agenda being finalised and sent to owners.

In our opinion, it is also logical that a person can withdraw their nomination at any time before the vote, as otherwise the person would simply resign at the conclusion of the meeting, and the committee would choose a replacement rather than the owners.

Alanna Hill Mathews Hunt Legal E: alanna.hill@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #504.

Question: Can a committee member resign on the condition that her brother, who is a co-owner, replaces her?

Answer: Ultimately it is the Committee or the Body Corporate’s decision.

The Standard Module outlines that if a position on the committee becomes vacant, on the basis that there are still enough committee members to form a quorum, the committee vote to appoint an eligible person to fill the vacancy, or if not, or if they wish to, they call a general meeting to choose an eligible person to fill the vacancy.

There is nothing in the legislation relating to conditions of resignation. I would suggest that the committee member discuss with the other members their reasons for resigning, and the brother outline his proposed contribution to the committee, to assist with their consideration of him as the replacement member. Ultimately it is the Committee or the Body Corporate’s decision.

Charlotte Divall SSKB E: SSKB P: 07 5504 2000

This post appears in Strata News #501.

Question: Given a chairperson’s duties include declaring the results of votes on motions at a general meeting, what are the legal implications, if any, of an employee of the strata manager (ie the community manager) declaring the results rather than the chairperson of the committee who is present and chairing the meeting.

Answer: The body corporate manager is engaged to assist the body corporate and can be authorised to carry out some or all of the powers of the committee.

The body corporate manager is engaged to assist the body corporate and can be authorised to carry out some or all of the powers of the committee. This includes assistance to the Chair during a meeting that can extend to reading out the votes at the direction of the Chair.

It’s important to note that when doing this the body corporate manager is not replacing the Chair and on the minutes the Chair is recorded as holding that position for the meeting.

There is a wider question here about the extent to which the body corporate manager should play an active role in the meeting. The need for them to do so will vary from scheme to scheme. At some buildings, the committee may be very engaged in running the building and owners may have a clear idea of how they want the meetings to be run. In that case, the body corporate manager may be a more passive presence whose main function is recording the minutes.

Other sites may be more reliant on the manager as the knowledge-hub for the scheme and require greater direction from the manager to help meetings run efficiently. In those cases it is reasonable for the manager, under the direction of the Committee, to play a more direct role.

See the government website for further details on the role of the body corporate manager: Queensland Government: Body corporate manager

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #500.

Question: Can the chairman who was elected at the AGM, resign from the executive position and become an ordinary committee member without first going to a general meeting?

Answer: Technically this may be possible.

Technically this may be possible. If the Chair resigns, their position becomes vacant and needs to be filled by the Committee within a month or a general meeting has to be held. If the committee appoint an ordinary member as the new chair their position needs to be filled in turn and the committee could appoint the previous chair to that spot. It’s a roundabout way of doing it and depending on the nature of your scheme a general meeting might be a more transparent way of handling the transition.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #468.

Question: Our caretaker has been door knocking other owners to try and vote us off the committee as we have questioned his astronomical quotes. He ignores us when we ask for works to be done on our unit.

Answer: There is no prohibition on a caretaker lobbying or door knocking.

There is no prohibition on a caretaker lobbying or door knocking. If people want to vote you on or off the committee, then that’s their choice.

A caretaker is usually engaged to provide services in relation to common property, so I am not sure why the caretaker would be called upon to do work on your lot. The contractual relationship is between the caretaker and the body corporate, not individual owners.

Chris Irons Hynes Legal E: Chris.Irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #461.

Question: I am the only person that has been nominated for the vacant chairperson role by the deadline. Will I automatically be sworn in as Chairperson at our April AGM without any need for a ballot?

Our Chairperson has just resigned from the committee and the next AGM is happening in late April, with regards to a casual vacancy on our committee. Nominations for the chairperson role closed on the 31st of January. I am currently an ordinary member and also have been nominated prior to the 31st of January for the Chairperson role.

As I understand there have been no other nominations for this role and the current Chairperson has now resigned. My understanding is that as I have nominated by the deadline I will automatically be sworn in as Chairperson at our April AGM without any need for a ballot. Am I correct? If not, what is the correct process?

We are under the accommodation Module/Building Format Scheme.

Answer: If the resignation takes place at the AGM, appointments would be based on nominations. If only one person has nominated for the position, and if they are eligible, then they would be elected on that basis.

It’s not quite clear from the question if the Chair has resigned effective immediately or if that will occur effective at the AGM.

If the resignation takes place at the AGM then, as indicated in the question, appointments would be based on nominations. If only one person has nominated for the position, and if they are eligible, then they would be elected on that basis.

If the Chair has resigned with immediate effect a casual vacancy has been created. Once notice of the vacancy has been received, the Committee has one month to fill the position. They can do this by calling a committee meeting or VOC to appoint a suitable person. The act doesn’t specifically say who that person could or should be, but in most cases you may expect it to be someone who is already a member of the committee and is able to step into the vacant position. However, the Body Corporate also has to ensure that the total number of committee members elected at the AGM is maintained through the whole year. So, for example, if there are five people elected at the AGM, this has to be kept at five for the whole year. If a vacancy arises, and an existing committee member steps into the vacant position, then this opens up an Ordinary Member spot, and they still have to find a new person to fill that spot.

Lastly, if the resignation of the committee member means a quorum can no longer be reached or the committee cannot reach agreement within a month a general meeting should be called to appoint a new member.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the March 2021 edition of The QLD Strata Magazine.

Question: I was excited to be voted in as our Body Corporate Committee secretary only to find I do nothing. I don’t get the correspondence, I don’t even get to read it, I don’t do minutes. Nothing. Is this right?

I was excited to be voted in as our Body Corporate Committee secretary only to find I do nothing. I don’t get the correspondence, I don’t even get to read it, I don’t do minutes. Nothing. Is this right?

If the Body Corporate Manager does it all then why is there a need for the committee to have a secretary position at all? If this is the case with all normal committees, why isn’t the Body Corporate Manager automatically the secretary instead of someone holding a title with no job?

Answer: The way in which committee members interact with their body corporate manager can vary considerably from building to building.

The way in which committee members interact with their body corporate manager can vary considerably from building to building depending on the needs of your scheme.

Most agency agreements delegate a number of secretarial duties to the body corporate manager (BCM). Typically these include providing assistance with routine correspondence, arranging meetings and issuing minutes. It depends on how your scheme is organised but if historically the committee has been happy for the BCM to do that work then your manager is probably continuing with that structure.

If you want to take on a more direct role, that is your right. The best next step would be to contact the manager and discuss what they are doing and what you would like them to do to establish a new equilibrium.

Generally, the key functions of the secretary are:

Sending out notices for meetings.

Asking for and receiving nominations for committee positions before an annual general meeting. If a notice inviting nominations is forwarded to lot owners, the secretary must also invite owners to submit motions for the meeting.

Making the ballot papers for the committee election, and sending them and the other material with the meeting notices.

Having the following available for viewing by voters at a general meeting:
- the roll
- a list of the persons who have the right to vote at the meeting
- all proxy forms and voting papers
- Receiving the completed voting papers for a general meeting.
Receiving the completed proxy forms for general and committee meetings.

The secretary also often takes minutes of meetings, although the legislation does not require them to.

So there is a defined position and requirement for this role. It’s not a requirement to have a body corporate manager but the work of all committee members can be complex and time consuming leading to most schemes appointing a manager to assist.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the February 2021 edition of The QLD Strata Magazine.

Question: We have a committee member who has listed their unit for sale. Do they have to resign from the Committee?

Answer: Listing the property for sale is not the same as having sold it.

No, they don’t. Listing the property for sale is not the same as having sold it. If they do sell then at the point they cease to be an owner, they cease to be eligible to be on the committee. They don’t need to resign: they simply stop being eligible.

Bear in mind, though, that they could still be someone’s representative and thus still be part of the committee. It can and does happen.

Chris Irons Hynes Legal E: Chris.Irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #424.

Question: A Committee Member stands in for and receives payment from the caretakers on a regular basis when they are away. Can they stay on the committee and vote, or is this a conflict of interest?

The on-site Caretakers are on Contract to the Body Corporate Committee. The complex has 150 Villas. When they go away for weeks at a time, a Resident looks after the Complex, mowing etc., and is paid by the Caretaker.

The Resident is on the Committee. My understanding is the Resident can stay on Committee, but can’t vote, as it is a conflict of interest, or he is classed as an associate of the Caretaker.

Answer: Section 10(2) of the Standard Module does indeed provide that someone is ineligible to be voting member if they are an ‘associate’.

You’re right in that if someone declares a conflict of interest as a committee member, they are not entitled to vote on a motion involving that issue – refer s53 of the Standard Module.

What you’re talking about, though, is someone not being eligible to be a voting member of the committee because they are an associate of the caretaker. That’s a different issue. Section 10(2) of the Standard Module does indeed provide that someone is ineligible to be voting member if they are an ‘associate’.

The potential meaning of ‘associate’ is set out in section 309 of the Act and contemplates several scenarios, one of which is a ‘fiduciary relationship’. I’m not willing to be definitive and say that there is a ‘fiduciary relationship’ and that this person is an ‘associate’, as it always depends on circumstances and I’ve seen plenty of disputes on that topic. What I would say is that if there is concern about the situation then legal advice should be sought to clarify.

Chris Irons Hynes Legal E: Chris.Irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #398.

Question: Can someone be both executive and ordinary member if they have received the necessary number of votes at the AGM?

At our last AGM I nominated for Chair and ordinary member. I am now chair.

I received the 3rd highest number of votes for ordinary member as well. The current Treasurer received the 4th highest for ordinary member.

Can we be both executive and ordinary members based on the votes at the AGM?

I understand that it is possible for one person, based on the votes, to hold all 3 executive positions. The votes ranged from 26 to a low of 9 for ordinary members. On both counts, I received 24 votes.

Answer: A person cannot be elected as both an executive member of the committee and as an ordinary committee member.

A person’s nomination for a position as an ordinary committee member is of no effect if that person has been elected as an executive member of the committee (even if that person’s name appears on a ballot for ordinary members).

This means that a person cannot be elected as both an executive member of the committee and as an ordinary committee member.

Therefore, if the votes are received in favour of anyone elected as an executive member, those votes must not be considered when determining the election of ordinary members of the committee.

Peter Hunt Mathews Hunt Legal E: peter.hunt@mathewshuntlegal.com.au

This post appears in Strata News #331.

Question: A lot owner who has nominated for holding a position on the executive committee is currently in breaches for non-compliance with by-laws. Is there any way a committee can decline to accept a nomination?

A committee of a 16 lot scheme has had an AGM which has been adjourned and has 6 nominations for the Committee members (including the chairperson, treasurer and secretary).

The committee doesn’t want to accept one nomination because of breaches for non-compliance with by-laws.

Can they decline the nomination if the nominating person is currently in breach? The code of the conduct would be in breach as well.

Is there any way a committee can decline to accept a nomination?

Answer: Only when they are unfinancial can something be done. You cannot reject a nomination for this.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #321.

Question: Some members of the committee do not respond to requests or emails. Can we refuse members from holding committee positions in future based on lack of activity?

I am in Queensland part of small body Corporate as secretary.

There are only 6 units in the group and we have 4 committee members. The issue is when there is a decision to be made or account approval and the Body Corporate manager sends emails for approval, only two ever respond which is not enough.

Can we refuse members from holding committee positions in future based on lack of activity, as it is extremely frustrating?

Answer: Unfortunately not.

Unfortunately not – owners have the rights to appoint themselves on the committee.

But if the committee holds physical meetings and an attendee does not attend twice in a row without the committee’s approval, the committee member is removed from their position.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #249.

Question: What is the lawful status of the chairman holding multiple positions on the executive committee? At our Residential community scheme, the Chairperson has claimed the roles of both Chair AND Secretary.

At our Residential community scheme, 7 people are on Committee and vote.

The Chairperson has claimed the roles of both Chair AND Secretary.

A different person is the Treasurer. In addition, there are 5 ordinary committee members.

This equates to 7 voters but 8 positions.

What is the lawful status of the chairman holding multiple positions on the executive committee?

Answer: The required number of voting members is based on people, not positions.

This is fine. The module provides:

The one person may hold the positions of chairperson, secretary and treasurer, or any 2 of the positions, in conjunction.

The required number of voting members is based on people, not positions.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #228.

Question: At our recent AGM, our chairman received majority votes (9 votes for all executive positions). Our Body Corporate Managers advised us that it is legal for one person to hold all three positions on executive committee.

I am an ex-treasurer for a body corporate in Queensland. At a recent AGM, both myself & the secretary had nominated ourselves for re-election. However, the chairman received majority votes (9 votes for all executive positions). Our Body Corporate Managers advised us that it is legal for one person to hold all 3 positions on the executive committee.

My understanding is that ordinary committee members can be elected in order of votes received. Can you please advise if this view is still valid in cases of nominations received for these positions, or only valid in case of no nominations received?

The Chairman has been holding all positions on the executive committee for the past few years and makes it difficult for others to participate and resolve issues within the complex.

Any guidance would be greatly appreciated.

Answer: One person can hold all executive positions. If they get the votes, they get the votes.

Two things:

One person can hold all executive positions. If they get the votes, they get the votes.

Ordinary member wise, if there are four or fewer nominations before the close of nominations they are all simply elected. If there are more than four, then it is most votes received on the ballot, and it is basically optional preferential voting. Owners could vote for all candidates or just two. It is up to them. If all owners voted for every candidate the final four spots would be decided a method of chance at the meeting. I have been at them where we have tossed coins and drawn straws to decide who gets in.

And remember the chairperson is only one vote – not three. If there are one executive member and four ordinary members, there are only five votes. And if four are against the chair, then….

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #190.

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