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PeterC said HERE
This gets into a discussion about whether people taking part in the meeting but abstaining on this motion count towards the total when considering whether there is 25% opposed (one third opposed to sink a special resolution in the ACT). In the ACT I would say a person taking part in the meeting but abstaining on this motion is counted to the total.Ah, one of my hobby-horses! Just about every definition of “abstain” that I can find is a variation of “choosing not to use ones vote” or “not voting”.
In NSW, the definition of a special resolution (which is required for a change of by-laws) is: “a resolution which is passed at a duly convened general meeting of an owners corporation and against which not more than one-quarter in value … of votes is cast.”
So, if abstention is not voting – or not “casting” a vote – then the abstentions are not counted in the overall figure in NSW.
However, in ACT the law says special resolutions are passed when “the votes cast against the resolution number less than 1/3 of the total number of votes that can be cast on the resolution by people present at the meeting (including proxy votes).”
And there (in my bold) is the difference. In NSW we count the number of votes actually cast where as in the ACT they count the number of votes that could potentially be cast by voters at the meeting in person or by proxy.
I can’t find any rules on whether or not you count spoiled vote (like the ones where someone has scribbled “the chairman is an idiot”).
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And there (in my bold) is the difference.
I am happy to agree with Jimmy’s interpretation of the subtly different wording of NSW and ACT acts. I think you NSWelsh must have a very hard time getting even the most reasonable of special resolutions passed if there is opposition from anyone prepared to run a leaflet campaign of disinformation and/or round up a handful of proxies from disengaged mates. [Not that I am scarred or bitter about anything!]
I can’t find any rules on whether or not you count spoiled vote (like the ones where someone has scribbled “the chairman is an idiot”).
We counted the vote on which one owner added that he wanted to vote against the chair and me (treasurer) if we stood for election. Voting intention on rest of the form could be easily understood so this was interpreted as an direction to his proxy. The consequence was that we voted on each person nominated to the EC one by one, rather than just as a block by show of hands. The consequence was that there were a few votes against me and the chair but large majority support. However, for someone else we had to recount three times because it was so close and for the only time I am aware of, a person who wanted to join our EC did not get on.
@JimmyT said:In NSW, the definition of a special resolution (which is required for a change of by-laws) is: “a resolution which is passed at a duly convened general meeting of an owners corporation and against which not more than one-quarter in value … of votes is cast.”
So, if abstention is not voting – or not “casting” a vote – then the abstentions are not counted in the overall figure in NSW.
Actually I think it’s less clear than is generally stated. It is quite possible that the NSW legislation intended to operate similar to the ACT but just worded it badly.
Daniel Russell agreed with and explained the Ilkin position quite well, on [another website].
It’s also worth noting that the SSMA 2015 has clarified this issue by creating a better definition of special resolution, without the ambiguity. It clarifies against the Ilkin/Russell interpretation, but the legislators did bother to redefine the Special Resolution – which I think acknowledges the ambiguity in the old definition. Section 5(1) of SSMA 2015 is copied below.
5 Resolutions of owners corporations
(1) In this Act, a resolution of an owners corporation is a special resolution if:
(a) it is passed at a properly convened general meeting, and
(b) not more than 25% of the value of votes cast are against the resolution.
@noshirts said:It is quite possible that the NSW legislation intended to operate similar to the ACT but just worded it badly.
Anything is possible – but if that was the NSW legislators’ intent why then have the current crop come up with a slight clarification that is different from the ACT regulations in precisely the way I have outlined above.
The wording of the current law – “one-quarter in value of votes is cast …” – is only slightly more ambiguous than the proposed law: “… 25% of the value of votes cast …” However, it clearly refers to the votes actually cast rather than, as in ACT regs, the number of votes that could have been cast.
You will still get pedants who will argue, quite wrongly, that an abstention is the casting of a non-vote and therefore should be counted in the overall total.
However, this Act has been in place for almost 20 years and I am yet to come across a single example of a court ruling creating the precedent where an abstention at a strata general meeting is counted as a vote.
So, no more hypotheticals on this please. As my mother used to say, “If ‘ifs and ands’ were pots and pans, there’d be no need for tinkers.”
Also, with all due respect to Mr Ilkin, if all lawyers agreed on interpretations of the law they would do themselves out of a job.
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