A recent decision of the commissioner’s office considered the ability of a body corporate to make its own rules for replacing committee members.
The modules provide that where a committee member vacates his or her position:
- if a quorum still remains (three members), then the body corporate must appoint someone eligible to be a committee member or call an EGM to do so; or
- if there is less than a quorum then remaining, call an EGM to fill the vacancy.
This particular body corporate had numerous nominations for positions on the committee every year and there was always some people that missed out on positions (as there are only ever seven possible spots to fill). The body corporate passed a motion at a previous general meeting that provided where a casual vacancy appeared on the committee, that the position would be offered to the person who had the most votes for committee at the previous AGM, but missed out (effectively the person who came eighth at that ballot).
A casual vacancy appeared and this process was followed. An owner challenged that validity of that appointment on the basis that the vacancy should have been offered to all other owners.
A body corporate can never contract out of the Act. Therefore, if the Act imposes rules, those rules must be followed.
In this instance, the commissioner acknowledged that as the Act was effectively silent about how a casual vacancy was to be filled by a committee and held that the decision made by the committee about offering that spot to the next available person was appropriate. This decision leaves each committee free to choose any particular set of rules when replacing casual vacancies on committee.