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Removing Committee Members

What the owners giveth, the owners can taketh away! The Regulation Modules provide two ways that a sitting, voting committee member can be removed; each of them by ordinary resolution of the Body Corporate.

The most litigated, but the least used, is to remove the voting committee member for a breach of the Code of Conduct. It is an article of the Code of Conduct, in fact the first duty, that a voting committee member must have a commitment to acquiring an understanding of the Act, including the Code. Accordingly all voting committee members should be aware that if they are to be removed for a breach of the Code of Conduct the first step is for the Body Corporate to decide, by ordinary resolution (and therefore at a General Meeting) to give the committee member a written notice. That notice must state:

  • That the Body Corporate believes the committee member has breached a stated provision of the Code of Conduct;
  • Details sufficient to identify the breach, in not more than 600 words;
  • That the voting committee member may give any other member of the Body Corporate, within a stated period of at least 21 days after the notice is given, a written response to the notice, which response must also not be longer than 600 words in length;
  • That if asked by the voting committee member, the Body Corporate will pay the postage charges and photocopying costs reasonably incurred in sending out that written response; and
  • That the Body Corporate is to consider a motion to remove the voting committee member for the breach of the Code of Conduct at the next General Meeting of the Body Corporate called after the response period ends.

After the notice has been given and the response period has ended, the Body Corporate may then propose to remove the voting committee member at a General Meeting by ordinary resolution. If the ordinary resolution is passed, then the voting committee member is removed from office.

The requirement to call two General Meetings, to provide a notice to the voting committee member and to give them a right of reply is perhaps what stops this method being used more often. On the other hand it may simply be that the Code of Conduct is reasonably short and easy to comply with, so obvious and provable breaches of the Code are rare.

The other method to remove a sitting voting committee member is simply to pass an ordinary resolution at a General Meeting to remove them. No breach of the Code of Conduct is required, no notice and right of reply is involved and neither is any breach of the Act required!

At a General Meeting at which a voting committee member is removed (whether for a Code of Conduct breach or otherwise) the committee member can be replaced.

Needless to say removing sitting voting committee members is usually controversial. While there is a good deal of litigation as to the Code of Conduct breach removal method, more and more dispute resolution applications are being lodged about the removal of voting committee members using the second, simpler method. Taking into account the increasing body of Adjudicator’s decisions on point, best practice currently appears to be:

  • That one motion per voting committee member to be removed is required;
  • That if the voting committee member is to be replaced at the same meeting they are removed, then one motion per new committee member to be appointed is required; and
  • Removal and replacement of all voting committee members is permitted, provided that it is done in the correct order so as to ensure that there remains all necessary office holders and, if applicable, a quorum (of the committee).

As part of the review of Queensland’s Property Laws the processes above may change. In our next article we will explain how.

This article was contributed by Michael Kleinschmidt of Stratum Legal

 

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  1. Richard Read

    A recent Adjudicators Order impelled our Committee to carry out action against an owner which they had threatened to do several times but never carried out. The owners who made the application incurred considerable expense and there is no shortage of evidence that those owners did indeed raise a matter that should not have been necessary had the Committee carried out its own decisions. Is there any provision in this case for the expenses incurred to be reinbursed?

  2. Michael Kleinschmidt

    Hi Richard, the owners that made the application (for orders that the committee do their job) could seek ex gratia relief in the form of a reimbursement motion put to the next general meeting (there would be no point putting the motion to the committee to consider!). ‘Costs’ in a Chapter 6 proceeding cannot be obtained in this instance, so relief would have to be a political rather than legal.

  3. Kathy Morris

    Hi, I live under a Principle Body Corporate that overseas all the body corporates which includes my unit. Recently I was driving through the property and the Chair of the PBC attacked me, lunged at me whilst driving, ranting and raving. I didn’t know this person. He admitted to this offence and said he would do it again. I have reported it to the police who can’t do anything at this stage.
    I believe I can put a motion forward as the road I was driving on comes under the jurisdiction of of the PBC. I would like this person removed due to Cod of Conduct. Can you let me have an example of such a motion and are there repercussion especially financially on me for doing so.
    Thanks kathy
    Gold Coast

  4. Michael Kleinschmidt

    Hi Kathy, best to contact me on my work number for a confidential chat.
    07 5406 1282
    regards
    Michael

  5. Jan Davies

    Hi MIchael
    I am a Committee Member of a Scheme in Brisbane. Our AGM was held in August. Just prior to the AGM an interstate Company purchased a large number of the lots in the scheme – approximately 30 lots and have managed to increase their holding to just under 70 lots out of the 107 lots in the scheme. This Company has swept in and made it known that they intend to take over the building. The Director of this company has now called for an EGM whereby they are putting up an ordinary resolution to have the current committee stood down and are appointing their own people to fill the vacancies.
    This Company holds all of its lots in its Company name apart from one lot that is held in another name but still related to the company.
    I see that there is a regulation in the Act that if a Company or person holds two or more lots in a scheme and there are over 7 lots in the scheme then they can only nominate two persons to the Committee. This applies to the elected Committee at the AGM but I am being told that it is different if persons are being appointed (not elected). Can this be right??
    This Company has also put up a motion to go to the EGM that they want to increase the spending limit of the Committee from $300.00 per lot to $1200 per lot. The Building is in line for some major remedial work and money needs to be spent however if this Company runs the Committee they can do pretty much what they please as they also have the controlling vote.
    As the Company has called for an EGM it needs to be held within a time frame which is in about mid October.
    We are seeking legal advice on the matter but I just though I would run this past you. Your comments on the matter would be very much appreciated.

  6. Michael Kleinschmidt

    Hi Jan,
    Happy to help.
    Feel free to call me on the work number – 5406 1282
    Regards
    Michael

  7. Venetia de Chazal

    Scenario: The chair person of the committee (residential complex) resigns due health reasons and the committee is informed of this by the Strata Manager.
    The Strata manager emails myself, a committee member to say in the next meeting we will hopefully come to a good resolution about said topic when a new committee is formed.
    A week later we find out that the Chairperson reinstated herself.
    The Strata Manager nor the resigned Chairperson did not let anyone know she was reinstating herself.

    Question: Can a Chairperson resign then reinstate herself without being voted back in?

    Question: If the Chair person cannot reinstate herself then any decision the Chair person has made effecting the maintenance of the residential property is null and void?

  8. Michael Kleinschmidt

    Hi Venetia,
    Have a look at section 33(2)(c) of the Standard Module.
    If the resignation was given to the Secretary (including the BCM exercising the authorized powers of the secretary) then no, reinstatement is not possible because the resignation was effective.
    It would then take a committee or general meeting to fill the position.
    On the other hand if the resignation was not delivered to the Secretary (as the chairperson cannot deliver their resignation to themselves) then it would never have had effect.
    Regards
    Michael

  9. Venetia de Chazal

    Thank you. The Strata Manager is now stating because the Chairperson had already put her Chairperson nomination form in before the required date of 31st March she is still Chairperson. The Chairperson resigned three days before the AGM thus she is still Chairperson through her nomination. Is this correct?
    The Strata Manager did not tell anyone the Chairperson had resigned previous to the AGM and during the AGM meeting. If lot owners had known the Chairperson had resigned a few including a committee member would have put their hands up to be the Chairperson.

  10. Michael Kleinschmidt

    Hi Venetia,
    Sounds like a mess!
    One solution is simply to requisition a general meeting and remove the chairperson (as per my article above).
    If enough owners are sick of the chairperson mucking around, then you will be able to achieve removal with a simple ordinary resolution.
    If you would like legal advice, then please contact me.
    Regards
    Michael

  11. Venetia de Chazal

    Michael thanks for your help in explaining everything so clearly. It has been a mess.
    We have our AGM in two weeks. The last two weeks I’ve managed to get the current Chairperson out. I’ve also managed to find a non biased approachable lot owner living on site who knows and understands the standard module to apply as our new Chairperson. This will come into effect in two weeks at our AGM.
    Thanks again. Happy days, happy living 🙂

  12. Michael Kleinschmidt

    Well done Venetia,
    I hope it goes well and everything settles down.
    regards
    Michael

  13. Janine Thorstensen

    Hi
    My husband was chairman of a strata committee who resigned because of harassment by two owners where we live.
    Because of this another owner also resigned leaving two vacant positions on the committee of seven. These two owners then nominated and took over these positions because we needed seven members again. As a result of them taking the chairman and secretary positions another three owners resigned leaving only four members again. This has been disruptive to say the least. The two concerned have been bullying other committee members. So my husband was asked to reapply for a position again on the committee this week as our AGM is still to be announced and our budget meeting hasn’t happened. We have been told they have instructed our BCM they won’t accept his nomination and are asking other owners to apply instead. We only have 28 units where we are and find it hard to get members and only a month ago sent a letter asking for owners to join with no response.
    My question is can they block my husband from coming on the committee to fill one of three casual vacant positions? Does he have to wait to be voted in as these two people are trying to block him coming on the committee again?