From time to time, it may become necessary to remove a voting member from the committee or the whole committee itself.

The reasons for such removal are many and varied and include:

• dissatisfaction in the way the committee is conducting themselves, such as excessive spending

• failure of a committee member to follow a democratic process, such as an autocratic chairperson, or

• failure by a committee member to contribute in any meaningful way, such as continually being obstructionist, thus wasting the committee’s time.

If a committee member is being removed, this may be at the instigation of the committee itself or members of the body corporate. Where the whole committee is being removed, then this is generally at the instigation of members of the body corporate through a notice requesting an extraordinary general meeting.

There are two ways to remove a voting member of the committee:

• by ordinary resolution, or

• through the code of conduct provisions.

Removal by ordinary resolution - This is a very simple process and the preferred manner in which to remove a voting member of the committee or the whole committee. There is no requirement to provide any reasons for removal. Indeed, it is better not to say anything at all – the fact that there is a motion to consider removal speaks for itself.

When removing a voting member of the committee by ordinary resolution, all that is required is for the committee to convene a general meeting or, if a notice for a requested extraordinary general meeting is served on the secretary, then the secretary must convene the extraordinary general meeting.

The motion is then considered by the body corporate. There should also be a further motion (in the event the motion to remove the committee member is passed) to replace the committee member that has been removed.

When the whole committee is being removed, it can be done by way of one motion or separate motions for each position. We consider the better option is to remove each committee member separately, as some owners may wish to remove some members, but not all of them.

Where a further motion has been included to replace a committee member, there is no requirement to conduct an election to fill the vacancy created by the removal of the committee member.

Removal through the code of conduct

The removal of a voting member of the committee by way of a breach of the code of conduct is lengthy and fraught with danger.

Firstly, the body corporate must pass an ordinary resolution at a general meeting to give a notice to the committee member it believes has breached the code of conduct stating –

• the provision of the code that has been breached

• sufficient details to identify the breach

• a response may be given by the alleged offending committee member within 21 days

• if required by the alleged offending committee member, the response is to be given to other members of the body corporate, and

• the body corporate is to consider a motion to remove the alleged offending committing member at the next general meeting of the body corporate.

When the notice is given, and after the 21 day period has elapsed, the body corporate must include on the agenda of its next general meeting a motion to remove the member for breach of the code of conduct and attach to the agenda the notice given to the offending member, as well as the response, if requested by the offending committee member.

As can be seen, two general meetings are required to remove the committee member, along with the reasons for doing so. In addition, the committee member in question can respond to the allegations in the notice, which at the member’s request is also circulated to lot owners.

If it becomes necessary to remove a committee member or the whole committee, the better option is to do so by ordinary resolution as there is no need to provide reasons for the person’s removal or the whole committee’s removal. It is better not to enter into a debate or have a ‘paper war’ about a person’s actions that could ultimately lead to defamation.

The removal of a committee member only lasts until the next election when that person is entitled to nominate again for a position on the committee.

Ros Janes
Success Law Pty Ltd