This article about removing an elected body corporate committee member has been supplied by Jarrod Clarke, Mahoneys.
Body corporate committees are comprised of lot owners or individuals authorised to represent lot owners.
But for restricted matters, committees have broad powers to act for, and on behalf of, the body corporate. Committee members may have responsibility for large budgets and matters affecting the amenity of hundreds of people.
In this article we discuss the grounds and process for removing a committee member by ordinary resolution. The process for removal is set out in the relevant regulation modules. For simplicity this article focuses on the Body Corporates and Community Management (Standard Module) Regulation 2008, however there are equivalent provisions in each of the modules.
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To be eligible to be a committee member an individual must first be:
- a member of the body corporate;
- a family member of a member of the body corporate;
- a director, secretary or other nominee of a member of the body corporate.
A person who is otherwise eligible will be ineligible if they are:
- a body corporate manager, service contractor or letting agent; or
- an associate of a body corporate manager, service contractor or letting agent; or
- a person who owes a body corporate debt at the time voting members are chosen, or a person nominated by that person.
Committee members are elected until the end of the body corporate’s financial year or their position becomes vacant. A member’s position becomes vacant if the member:
- dies; or
- becomes ineligible to hold the position; or
- resigns by written notice given to the chairperson or secretary; or
- is not present personally or by proxy at 2 consecutive committee meetings without the committee’s leave; or
- is convicted (whether or not a conviction is recorded) of an indictable offence; or
- is removed from the committee by ordinary resolution of the body corporate.
Removing a Committee Member
A Body Corporate is able to remove a committee member for:
- breach of the code of conduct; or
- by simple majority vote.
Breach of the Code of Conduct
All committee members must comply with the Code of Conduct contained in the Act. The Code sets out various obligations with which committee members must comply. For example, they must exercise their role in the best interests of the body corporate and not their own interests.
If the body corporate considers a member of the committee has breached the code of conduct for committee members, it may seek to remove the member. The process for removal for a breach of conduct is contained in sections 34 and 35 of the Standard Module. The first step is to issue a breach notice in the manner set out under section 34 of the module.
Section 34 sets out that the breach notice must:
- be in writing;
- include details (limited to 600 words);
- allow no less than 21 days for the member to provide a written response (limited to 600 words);
- offer to pay the member’s reasonable expense of responding to the notice;
- notify the member that a motion to remove the member shall be considered at the next general meeting of the body corporate.
- If a breach notice is issued under section 34 the body corporate must, at the next practicable general meeting, consider a motion to remove the committee member.
Removal by Ordinary Resolution
A much simpler alternative, is to convene a general meeting and propose a motion to remove the relevant committee member.
Adjudicators have held that section 33(2)(f) gives rise to a general ability to remove committee members at the discretion of lot owners (see Victoria Towers [2013] QBCCMCmr 358 (10 September 2013) and (Paloma [2010] QBCCMCmr 241 (31 May 2010)).
The process required to remove a committee member in accordance with section 33 is identical to any ordinary resolution to be put to the body corporate. Ordinary resolutions are defined by sections 108 and 110 of the Act. In short, an ordinary resolution is won by a simple majority of votes cast.
It is important to note that bodies corporate have an obligation to act reasonably and are subject to anti-discrimination laws. Accordingly a body corporate should not attempt to remove a committee member if that removal would conflict with the provisions in the Anti-Discrimination Act (ie. The removal was because of certain attributes held by the member – eg sex, relationship status, age, race etc.)
Removing committee members is a complex process that often results in disputes, which end up in the Body Corporate Commissioner’s Office. It is therefore important that a body corporate committee and body corporate manager seek expert legal advice before removing a committee member.
Jarrod Clarke Mahoneys E: jclarke@mahoneys.com.au P: 07 3007 3753
This post appears in Strata News #420.
Have a question about removing an elected body corporate committee member or something to add to the article? Leave a comment below.
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This article has been republished with permission from the author and first appeared on the Mahoneys website.
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