In NSW: “In this Act, a resolution of an owners corporation is a “special resolution” if–it is passed at a properly convened general meeting, and, of the value of votes cast, not more than 25% are against the resolution…”
Commentary on SR voting in NSW by a strata lawyer commenting on another strata lawyers’ view; 1996 Act.
The view expressed by Alex (Ilkin) is the one I have been accustomed to.
It is explained in terms of 18(2), on the basis that 18(2)(a) indicates that the question of whether the motion passes is determined on votes cast only, whereas 18(2)(b) and 18(3) are directed at how the value of votes is determined.
If you then look to the definition of “special resolution” in the dictionary, the reference to clause 18(2) and 18(3) is in relation to determining the 25% value of votes that are cast (and not determining whether the motion is passed or not).
Essentially Alex’s view treats the words “votes” in the phrase “not more than 25 percent … of votes is cast” as meaning votes that could be cast, whereas CCH is treating “votes” to mean votes that were in fact cast.
So on that view the motion passes under 18(2)(a) on votes actually cast for and against, and the 25% is determined on unit entitlements (or reduced developer entitlements) under 18(2)(b) and 18(3) of “votes” within the meaning of the definition of “special resolution” in the Dictionary.
There is a certain symmetry in your view, which certainly adds to its appeal.
However, as the matter is ambiguous, I am convinced by the notion that the legislature intended the 25% to be effectively a “veto” power, or a kind of reversal of the “onus”. If people are present and abstain, on that view they are electing not to exercise the veto power. The calculation of the 25% according to votes that could be cast is consistent with this interpretation.
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And for what it is worth the NSW Parliament were asked to consider as a part of the 2015 reforms changing the definition to that found in the Corporations Act.
(b) the resolution must be passed by at least 75% of the votes cast by members who are entitled to vote on the resolution
Funny part is I can find a Supreme Court case, strata case, where the Justice uses this definition when referring to a special resolution.