WA: Q&A Procedure for Election or Removal of Council Members

If the strata company is determining who is elected to council via ballot based on unit entitlement, the nominees who receive the highest number of votes (weighted by unit entitlement) up to the maximum allowable number (7 members in your case) will be elected to the council.

It’s important that the ballot process is conducted transparently and in accordance with the strata legislation and any applicable by-laws. This ensures fairness and accuracy in determining the election outcome.

Elected councillors also need to be aware that the council of the strata company are obligated to ensure they adhere to the general duties and conflict of interest disclosure requirements set out in Sections 91 and 137 of the Strata Titles Act 1985.

ESM Strata E: mchurstain@esmstrata.com.au P: 08 9362 1166

This post appears in the August 2024 edition of The WA Strata Magazine.

Question: For our complex of 10 units, one of our three council members has resigned. Do we need to replace the member before the next AGM?

For our complex of 10 units, we have a council of owners with three members. I am a lot owner and a council member. One other council member has advised he will no longer serve on the council, effective immediately.

As the two remaining council members form a quorum, can we carry on without filling the vacancy until the next AGM, or must we call an EGM to re-elect a third council member?

Answer: As long as the two remaining council members form a quorum, they can carry a vacancy until the next Annual General Meeting, where a new council will be elected.

The requirements under Standard Governance Bylaws 5 in Schedule 1 set out the provisions of the election of the council at a general meeting.

If, at the general meeting, a resolution was determined that the number of persons the council is to consist of is three, then the quorum of the council to make decisions is two (Governance Bylaw 4 sub-bylaw 11). That means that even if a third member of the council resigns and two remaining council members remain, those two remaining council members still constitute a quorum and may act as the council of the strata company. Governance Bylaw 4 sub-bylaw 12 states that the continuing members of the council may act even if there is a vacancy in the council, but so long as the number of members is reduced below the number fixed by these bylaws as the quorum of the council, the continuing member or member of the council may act for the purpose of increasing the number or member of the council or convening a general meeting of the strata company, but for no other purpose.

So, in short, in our opinion, yes, as long as the two remaining council members form a quorum, they can carry a vacancy until the next Annual General Meeting where then a new council will be elected.

This advice does not constitute legal advice and we recommend that the owner obtains their own legal advice to suit the circumstances.

Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 08 6559 7498

This post appears in the November 2023 edition of The WA Strata Magazine.

Question: The council of owners has requested a councillor resign. If they do not resign, what is the process to remove them?

Our new council of owners (CoO) issued a notice requesting a councillor resign within 14 days as they say this councillor only wants to advise, not help on the council. If the councillor hasn’t resigned, the CoO will call an EGM and have them removed.

Can the CoO do this without notifying all owners of the strata complex? We have 55 units in total.

Will owners get to vote on removing the councillor at the EGM? Will the existing council resign and be re-elected? We are not sure where everyone stands on this situation.

Answer: If the councillor doesn’t resign, call an EGM and propose a special resolution to remove the council member.

Removing a Council Member?

It is one thing to be elected to a council of owners. The other is managing the different personalities that make up the council.

The council of owners are elected at each Annual General Meeting (AGM), and if not re-elected, will end at the conclusion of the next AGM.

Schedule 1 By-law 4 (8) and (9) detail the circumstances when a member of the council ceases to hold a position.

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.

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 or re-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.

If the council of owners fail to receive a voluntary resignation from the council member, an EGM would need to be called and a special resolution proposed to remove the council member.

The EGM notice would be sent to all owners with the items of special business listed.

If there is only one motion to remove one council member, the vote will only be to remove that council member.

A special resolution requires 50% of the vote to be successful, as long as there is not 25% against.

All owners voting would need to be financial for their vote to be valid.

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

This post appears in Strata News #663.

Question: At our last AGM, 8 council members were elected. The strata manager defended the decision stating one or two people would drop out. The process was not adequately recorded in the minutes. What happens now?

At our last AGM, 8 council members were elected even though we have no by-laws allowing that.

When questioned about this, the strata manager responded:

”There was no need for a ballot vote as the majority voted for 8 council members at the AGM (1 reserve member) knowing that 1 or 2 would drop off (which did happen [1], even before the minutes were circulated).’“

The AGM minutes state:

”It was resolved unanimously via a show of hands that the council elect 8 members, instead of the odd number of 7 members in the event that 1 or more members choose/s to resign. By unanimous resolution by those newly elected councillors, it was agreed that AB be the Chairperson.”

The chairperson of the COO was also elected at the AGM, which is not as noted in the by-law.

What is the protocol in a case like this, as it is clearly against the strata legislation and by-laws?

Answer: As this decision to elect 8 members is in conflict with the Act, the vote would be invalid.

The council of a strata company must be constituted and perform its functions in accordance with the Strata Titles Act and the scheme by-laws.

The Strata Titles Act Governance by-law 4(3) states that no more than 7 members can be elected for the council of owners. As this decision to elect 8 members is in conflict with the Act, the vote would be invalid.

As further outlined in the governance by-laws, the council positions need to be determined at the first meeting of the strata council (by-law 6(1)). For which 7 days’ notice is required to be given before said meeting (by-law 8(2)(a)). Since the election of the council members occurred at the AGM, seven days’ notice of a council meeting would have not been supplied and therefore also invalidating the election of the COO member to chairperson.

Rick Blampey SVN Perth E: rblampey@svn.com.au P: 08 9427 7955

This post appears in Strata News #661.

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

This post appears in the May 2023 edition of The WA Strata Magazine.

Question: Can a strata manager who is not an owner be appointed to the strata committee to chair and assist in decision-making in a strata of around 25 owners? The current council of owners has just had a key committee member resign.

Answer: A council member must be an owner in the scheme, unless an owner of a lot is a corporation.

A council member must be an owner in the scheme, unless an owner of a lot is a corporation, then they may authorise any individual to perform on its behalf a function conferred under the Strata Titles Act WA, such as acting as an officer of the strata company or member of the strata council.

The chairperson of the strata company is to preside at all meetings of the council and, in their absence, can appoint another council member to do so.

The council however may employ or engage, on behalf of the strata company, any person as it thinks is necessary to provide any goods, amenity or service to the strata company (i.e. strata manager, accountant, insurance broker to assist at council meeting).

A strata company may, at a general meeting, authorise a person who is not an owner of a lot (i.e. strata manager, consultant, lawyer, friend) to act as the chairperson of the strata company for the purposes of that meeting.

Jordan Dinga Abode Strata E: abode@abodestrata.com.au P: 08 9368 2221

This post appears in Strata News #644.

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.

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)

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)

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.

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

This post appears in Strata News #625.

Question: Can a developer be voted onto the committee?

Answer: The developer can be on the committee if they are an owner of a lot.

The developer can be on the committee if they are an owner of a lot. Alternatively, if a lot is owned by a corporation, the corporation may authorise any individual on the corporations behalf, this might be the developer. The developer cannot be a council member without one of the above circumstances, unless you have a specific bylaw saying something otherwise.

Jordan Dinga Abode Strata E: abode@abodestrata.com.au P: 08 9368 2221

This post appears in Strata News #612.

Question: Does an owner need to be financial to be voted onto the council of owners?

Answer: If an owner is not up to date with payment of their levy contributions, this does not prevent them from being nominated to the Council of the Strata Company .

If an owner is not up to date with payment of their levy contributions, it does place certain restrictions upon their voting rights at a general meeting.

It does not prevent them from being nominated to the Council of the Strata Company – however, it does stop them from nominating their lot or another lot to Council. See Schedule 1(5)(2) and Section 132(2).

Election of council at general meeting

The chairperson must call on those persons who are present at the meeting in person or by proxy and entitled to nominate candidates to nominate candidates for election to the council.

Conducting business at general meetings

A person is not entitled to move a motion at a general meeting or to nominate a candidate for election as a member of the council unless the person is entitled to vote on the motion or at the election.

All owners have a great responsibility in who they nominate to represent their Strata Company by serving on the Council. They represent you and act on behalf of you!

When considering candidates to nominate, should owners consider whether the nominee will be suitable?

Do they contribute to the scheme by paying their levy contributions on time (as is required by all owners). Will they act in the schemes best interests with no conflict of interest? Will they act honestly, with loyalty and in good faith, and, will they exercise a degree of care and diligence in their performance?

There may be an acceptable reason for a lot owner to be unfinancial at the time of the Annual General Meeting. Whilst this does not allow them to nominate themselves, if other financial owners see value in their contribution to Council, they may nominate an unfinancial member.

ESM Strata E: mchurstain@esmstrata.com.au P: 08 9362 1166

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

Question: We have an AGM coming up and I’m considering nominating myself for the Council. How last-minute am I able to submit my nomination?

Answer: You can submit your completed council nomination form at the meeting itself when there is a call for a nominations motion.

Jordan Dinga Abode Strata E: abode@abodestrata.com.au P: 08 9368 2221

This post appears in Strata News #604.

Question: Can an owner who is unfinancial put forward a nomination to be on the council?

An owner who is unfinancial put forward a nomination to be on the council and was elected.

Can an unfinancial lot owner nominate for the council of owners? If they have already been accepted, what do we do?

Answer: An owner who is unfinancial is also not entitled to vote, hence, cannot nominate a candidate for election as a member and that includes self-nomination.

Section 132 (2) of the Strata Titles Act 1985 as amended 2018 states:

A person is not entitled to move a motion at a general meeting or to nominate a candidate for election as a member of the council unless the person is entitled to vote on the motion or at the election.

That means that an owner who is not financial at a meeting is also not entitled to vote, hence, cannot vote on the number of members on Council and cannot nominate a candidate for election as a member and that includes self-nomination.

If an owner who is entitled to vote nominates another owner who is not financial at the meeting to be elected onto the Council, and the owner consents to the nomination, then in my opinion that owner can be elected on the Council (though the unfinancial owner cannot vote on the election of the Council).

This advice does not constitute legal advice and we recommend that the owner obtains their own legal advice to suit the circumstances.

Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 08 6559 7498

This post appears in Strata News #595.

Question: If a husband and wife own two apartments in the same building, can they both be on the council representing a different apartment?

Answer: If the husband and wife are co-proprietors of both of the lots within the same strata scheme, then only one of them can nominate and be elected to the Council of Owners.

The short answer is, ‘it depends’, as follows:

If the husband and wife are co-proprietors of both of the lots within the same strata scheme, then only one of them can nominate and be elected to the Council of Owners as per Schedule 1 Bylaw 4(6).

If the husband and wife are the sole proprietors of two lots within the same strata scheme (i.e. they individually own one lot each), then yes, they can both be nominated and be elected to the Council of Owners.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9200 4200

This post appears in Strata News #593.

Question: Can joint owners of a lot form part of the Council of owners if it is agreed that they still only retain a single vote?

Answer: Only one nominated owner from joint owners is eligible to be elected to the Council and only that nominated owner can then vote at Council meetings.

The answer unfortunately is no.

As per Schedule 1 By-law 4(6) only one nominated owner from joint owners is eligible to be elected to the Council and only that nominated owner can then vote at Council meetings. It can’t be an interchangeable role between the joint owners of the lot.

That said, it’s not unusual for the Council to occasionally invite co-owners (or indeed any other owner) to attend Council meetings as a guest to provide input about matters being discussed, but those invitees cannot propose motions or vote on any motions at any Council meeting.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9200 4200

This post appears in the April 2022 edition of The WA Strata Magazine.

Question: Our 7 member COO has a mid-term vacancy. 50% of the remaining members have voted ‘No’ to filling the vacancy, despite a relevant nomination. Can three of the COO make this decisions?

We live in a building of 34 apartments in WA. The strata company voted at the last AGM to have 7 members on the COO. One of the members of the COO sold her apartment, leaving a vacancy on the COO.

An owner nominated himself, backed by two other owners, to be on the COO and fill the vacancy. I am one of the two supporting owners.

The existing members of the COO had a meeting where the voting took place, 3 for his appointment and 3 against.

Notwithstanding the three that voted against decided to reject his nomination and keep the COO at six members only. The other three that voted for were in fact ignored.

As voting by all owners to approve 7 members was carried out at the AGM, should this be complied with until voting can be done again at the next AGM?

Can three of the COO arbitrarily make decisions without observing the vote of all owners?

The matter is becoming quite urgent and serious with an owner looking into legal options.

Answer: The COO can continue to act as if they still have 6 members, therefore still fulfilling their quorum requirements.

Please bear in mind that we have not viewed the Strata Plan or the bylaws for this Strata Scheme. Our response therefore is reliant on the Standard Governance bylaws being the bylaws for this Strata Scheme.

The Governance bylaws provide the following:

Bylaw 4 (3) COO consists of not less than 3 nor more than 7 of the owners, as determined by the Strata Company at their Annual General Meeting

Bylaw 4 (9)(a) A COO member vacates office when they cease to be an owner or co-owner or on resignation or death?

Bylaw 4 (10) The remaining members may appoint a person eligible for election to the council to fill a vacancy in the office of a member of the council

Bylaw 4 (11) A quorum of the council is 4 if the council consists of 7 members

Bylaw 4 (12) The continuing members may continue to act if there is a vacancy in the council – as long as their number of members is not reduced below the quorum

Bylaw 6 (1) The members must appoint a chairperson, treasurer or secretary at their first meeting after they assume office as such members

Bylaw 6 (2) (b) A person may be appointed to 1 or more of those offices

Bylaw 6 (3A) The remaining members must appoint a member to fill a vacancy in an office ie: chairperson, treasurer or secretary

As per the bylaws listed above, when a Strata Scheme elects 7 members to the Council at an AGM, the quorum is determined to be 4. All matters put to the COO for consideration will require 4 members to confirm their agreement/approval as the quorum, and for the matter to be resolved.

Schedule 1 Bylaw 4 (10) provides the remaining members of the council with an ability to elect another member however this is optional to the COO as the bylaw specifies the COO may appoint a person eligible for election to the council to fill a vacancy in the office of a member.

If the vacating member was an office bearer then this office vacancy must be filled as per Bylaw 6 (3A), however this can be filled by any other current member as per Bylaw 6 (2)(b).

As per your notes, the council have met and considered the election of another member to fill the member vacancy. The motion has not been supported by a quorum of the council and therefore the nomination has not been accepted. This process is in compliance with the legislation and the Strata Company bylaws and is not required to be referred to all owners via an Extraordinary General Meeting to resolve or consider. The council are elected annually, with the term finalising at the conclusion of the next Annual General Meeting.

The COO can continue to act as if they still have 6 members, therefore still fulfilling their quorum requirements.

The Council has limitations set within the legislation in relation to the funds they are able to expend without further authority from the owners and other approvals or formalities.

The recent legislation reform also requires the COO members to act honestly and in good faith, exercise a degree of care and diligence, and disclose any direct or indirect pecuniary interest that may conflict with their performance on any matter as per Section 137.

Shelley Fitzgerald Emerson Raine E: shelley@emersonraine.com.au P: 9330 3959

This post appears in the April 2022 edition of The WA Strata Magazine.

Question: We have two vacancies on the Council of Owners. If I request to join and I’m rejected, does the council need to provide a reason for their decision?

I would like to join the Council of Owners so that I can assist in making decisions for our building.

Currently, there is one position filled and two vacant positions. Can I be added to fill one of those positions?

If I request to join, does the council have to approve the application?

If the request is rejected, do they need to provide some kind of reason?

Can I somehow appeal the decision?

Answer: If the decision is made at a properly convened Council of Owners meeting, it should be minuted.

Can you be added to fill one of those positions? Yes – Schedule 1 By-law 4 (12) states (in part) “The continuing members of the council may act even if there is a vacancy in the council, but so long as the number of members is reduced below the number fixed by these by-laws as the quorum of the council, the continuing members or member of the council may act for the purpose of increasing the number of members of the council…”

Does the council have to approve the application? Yes – Schedule 1 By-law 4 (10) states (in part) “The remaining members of the council may appoint a person eligible for election to council to fill a vacancy in the office of a member of the council, … and any person so appointed holds office, subject to this by-law, for the balance of the predecessors term of office.”

The Act does not specify any action if a request to fill a COO vacancy is rejected, or for the remaining COO members to give a reason.

If the decision is made at a properly convened Council of Owners meeting (as per Schedule 1 by-law 8), it should be minuted. Depending on what is minuted, there might be an avenue to lodge an application with the State Administrative Tribunal to appeal the COO decision however I would strongly recommend independent specialist advice before considering an application to the SAT.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9200 4200

This post appears in Strata News #555.

Question: At the AGM, our chairman stated that the council of owners would be limited to three members. I thought any owner could become a member of the council up to the maximum of seven.

At our AGM via zoom it was stated by the chairman that the council of owners would be limited to three members. I requested to be on the council as the fourth member and was advised that this was voted down by the three members of the council.

My understanding is that any owner can become a member of the council up to the maximum of seven. The strata comprises of eight units. Can you assist?

Answer: The number of owners that will be on the council is determined not by the chairperson or current council of owners but by the owners at each AGM.

Yes, there can be up to a maximum of 7 on the council of owners, the act is clear the numbers range from a minimum of 3 up to 7.

However the number of owners that will be on the council is determined not by the chairperson or current council of owners but by the owners at each AGM. The term of a council member goes from AGM to AGM, the positions automatically become vacant at each AGM. An owner needs to re-nominate each year.

In relation to the composition of the council of owners on the agenda of each AGM there must be a motion determining the number of owners that will be on the council of owners.

Once owners have agreed to that number, nominations are called and if there are more nominations than positions available ballot papers need to be drawn up and all owners present at the meeting either in person, via proxy or zoom need to vote. All owners at the AGM determine the composition of the council of owners.

Brian Rulyancich StrataTAC E: strata@stratatac.com.au P: 0428 970 067

This post appears in the November 2021 edition of The WA Strata Magazine.

Question: Is the Council chairman elected at the AGM or at the first council meeting?

Answer: The council chairperson is elected at the first council meeting.

Unless there is a specific bylaw for your property saying otherwise, the council chairperson is elected at the first council meeting.

As per the standard Schedule 1 – Governance By-Laws.

Chairperson, secretary and treasurer of council

The members of a council must, at the first meeting of the council after they assume office as such members, appoint a chairperson, a secretary and a treasurer of the council.

Jordan Dinga Abode Strata E: abode@abodestrata.com.au P: 08 9368 2221

This post appears in Strata News #523.

Question: At our AGM a week ago, nominees were taken to fill the 7 council of owners positions. There were approx 35 votes, no decision was reached and we’ve been told it may take a while to work out who is on the Council. Is this a normal part of the process?

At our AGM a week ago, owners nominated to be on council and a vote was taken to decide which nominees would fill the 7 positions on council of owners. There were approx 35 votes and strata advised they could not tell those present who was on council. They took away all the paperwork and we are still waiting today one week later to find out who is on the council.

Can you please advise if the outgoing council is still the council of owners (even though I believe the normal procedure is for that council of owners to resign allowing new nominations to be voted on) or does the strata company take over the running of the scheme until the new council is announced?

If the old council are no longer “in charge” can they still make decisions (e.g. the old treasure/chairman is making financial decisions)

Answer: The current situation does not appear to be in accordance with the provisions of the Strata Titles Act 1985

Election of the Council of Owners is well defined in Schedule 1 By-law 5 of the Strata Titles Act 1985. To give an accurate answer, we’d require more details.

I’ve made some assumptions that:

An ordinary resolution was passed to set the number of Council members at seven, as per the Strata Titles Act 1985 Schedule 1 By-law 5(1).

There were seven nominations for the seven Council positions as per the Strata Titles Act 1985 Schedule 1 By-law 5(2), therefore a ballot was not needed as per the Strata Titles Act 1985 Schedule 1 By-law 5(4)(b).

In normal circumstances, and as per Section 4(9)(c) of the Strata Titles Act 1985, members of the Council vacate office at the conclusion of each Annual General Meeting if they are not elected or re-elected when the election of the Council of Owners takes place.

The usual order of proceedings at the item on the AGM agenda about the Election of Council of Owners would be:

The Chairman declares all positions on the Council of Owners vacant.

A motion to determine the number of Council members until the next AGM is voted upon (between 3 & 7) – in this case, I’ve assumed that the number of Councillors was resolved by Ordinary Resolution to be seven.

The chairman receives up to seven nominations for the seven Council positions from those present (either in person or represented by proxy), and then declares those nominees as elected to the Council of Owners as per Strata Titles Act 1985 Schedule 1 By-law 5(4)(a).

What I suspect might have happened is that there were more than seven nominations for Council, and therefore a ballot was (or should have been) held as per the Strata Titles Act 1985 Schedule 1 By-law 4(b).

At that point, it would be prudent and normal to either have a brief adjournment of the meeting so the meeting Chairman can tally the voting as per Strata Titles Act 1985 Schedule 1 By-law 5(7), or the Chairman can appoint another person to tally the voting for them and to report the ballot results later in the same meeting. There is no section of the Act that supports ‘taking away the paperwork’ and declaring a result after the meeting closes.

Being that a new council has yet to be declared, it is likely that the previous Council is still technically in place, but I’d strongly recommend that the author of the query seeks independent legal advice in this instance, as the way the current situation has been described does not appear to be in accordance with the provisions of the Strata Titles Act 1985.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9200 4200

This post appears in the September 2021 edition of The WA Strata Magazine.

Question: When electing the committee, how is voting counted? Is the vote decided based upon lot entitlements?

At our last AGM, we had more nominations for the council of owner committee than positions. The election went to a vote. There was a call to have a poll vote. One owner has a large lot entitlement. Using his entitlements, a committee was voted in that was not the popular vote on the night. Is this legal in WA?

Answer: “On an election of the council at a general meeting of the strata company a person who is entitled to vote in the election and who is present in person or by proxy at the meeting may demand that the vote in the election be counted by unit entitlement of the lots”.

Yes, this is legal in WA under Section 135 (3)(a) which states that “On an election of the council at a general meeting of the strata company a person who is entitled to vote in the election and who is present in person or by proxy at the meeting may demand that the vote in the election be counted by unit entitlement of the lots”. Without such a demand then the vote is counted by number.

It is also important to note that Section 132 (2) requires that a person is entitled to vote in order to nominate a candidate to the council of owners. To be entitled to vote the lot must be paid up to date with its strata levies.

The standard Governance by-laws apply to the election process. It is important the by-laws specific to your scheme as the standard by-laws may have been amended, repealed or replaced. Schedule 1 Governance By-law 5 sets out the procedure as follows:

5. Election of council at general meeting

The procedure for nomination and election of members of a council must be in accordance with the following rules —

The meeting must determine, in accordance with the requirements of by-law 4(3) the number of persons of whom the council is to consist.

The chairperson must call on those persons who are present at the meeting in person or by proxy and entitled to nominate candidates to nominate candidates for election to the council.

A nomination is ineffective unless supported by the consent of the nominee to the nomination, given —
1. in writing, and furnished to the chairperson at the meeting; or
2. orally by a nominee who is present at the meeting in person or by proxy.

When no further nominations are forthcoming, the chairperson —
1. if the number of candidates equals the number of members of the council determined in accordance with the requirements of by-law 4(3), must declare those candidates to be elected as members of the council;
2. if the number of candidates exceeds the number of members of the council as so determined, must direct that a ballot be held.

If a ballot is to be held, the chairperson must —
1. announce the names of the candidates; and
2. cause to be furnished to each person entitled to vote and present in person or by proxy, a blank form in respect of each lot in respect of which the person is entitled to vote for use as a ballot form.

A person who is entitled to vote must complete a valid ballot form by —
1. writing on the form the names of candidates, equal in number to the number of members of the council so that no name is repeated; and
2. indicating on the form the number of each lot in respect of which the person’s vote is cast and whether the person so votes as owner or first mortgagee of each such lot or as proxy of the owner or first mortgagee; and
3. signing the ballot form; and (d) returning it to the chairperson.
The chairperson, or a person appointed by the chairperson, must count the votes recorded on valid ballot forms in favour of each candidate.

Subject to sub-bylaw (9), candidates, being equal in number to the number of members of the council determined in accordance with by-law 4(3), who receive the highest numbers (in terms of lots or unit entitlements as required under the Strata Titles Act 1985 section 122) of votes are to be declared elected to the council.

If the number (in terms of lots or unit entitlements as required under the Strata Titles Act 1985 section 122) of votes recorded in favour of any candidate is the lowest of the numbers of votes referred to in sub-bylaw (8) and —
1. that number equals the number of votes recorded in favour of any other candidate; and
2. if each of those candidates were to be declared elected the number of persons elected would exceed the number of persons required to be elected, as between those candidates, the election must be decided by a show of hands of those entitled to vote and present in person or by proxy

Luke Downie Realmark E: ldownie@realmark.com.au P: 08 9328 0999

This post appears in Strata News #506.

Question: If the AGM votes for six members of the council but only receives five nominations, what needs to be done?

Answer: Nothing needs to be done.

Nothing needs to be done. It just means I have a vacant position that can be filled at a later time if they get another person willing to be on the council. No liability attaches to that position.

If they don’t happen to fill that position, then it just remains vacant and they will have five members on the council out of six.

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

This post appears in Strata News #424.

Question: If a committee member resigns, can the Council choose ANY owner or only someone out of the four owners who put their name forward at the recent AGM?

In our council, the existing committee managed to be re-elected but two elderly members resigned the following Monday and the chairman replaced them with other owners, but NOT with any of the four owners who had put their name forward at the AGM. This does not seem right to me.

Can the Council choose ANY owner or just from those who had nominated at the recent AGM?

Answer: The council simply picks anyone they want, of course still acting in the best interest of all owners.

Great question. My understanding of the Strata Titles Act of WA is that the council simply picks anyone they want, of course still acting in the best interest of all owners.

Schedule 1 Bylaw 4: Constitution of council

(10)The remaining members of the council may appoint a person eligible for election to the council to fill a vacancy in the office of a member of the council, other than a vacancy arising under sub‑bylaw (9)(c) or (d), and any person so appointed holds office, subject to this by‑law, for the balance of the predecessor’s term of office.

Jordan Dinga Abode Strata P: 08 9368 2221 E: abode@abodestrata.com.au

This post appears in Strata News #424.

Question: Can the names of the candidates that are nominated for election be listed on a board for the owners to refer to or would this advantage those on the top of the list?

Answer: Perhaps “drawing the names out of a hat” would resolve the priority of names on the list.

The method of listing the nominated candidates on a board or a large piece of butchers paper, tv screen are ways that voters can see who the nominees are.

As to the order of the presentation of the nominees, perhaps “drawing the names out of a hat” would resolve the priority of names on the list.

The random nature of a draw would possibly resolve the chance of a “donkey vote” happening.

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

This post appears in the October 2020 edition of The WA Strata Magazine.

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