- This topic has 11 replies, 5 voices, and was last updated 12 months ago by .
-
Topic
-
NSW Strata.
I am having an argument with the Strata Manager!
The agenda for the AGM included, in large letters right below the title: IF YOU ARE UNABLE TO ATTEND THE MEETING PLEASE COMPLETE YOUR VOTE FOR EACH MOTION BELOW AND RETURN TO YOUR APPOINTED STRATA MANAGER PRIOR TO THE COMMENCEMENT DATE/TIME.” Each motion listed in the agenda was accompanied by a YES/NO/ABSTAIN option.
The strata has authorised the use of pre-meeting polling forms, so the instruction could be correct. However, I pointed out to the SM that, as there was a motion on the agenda for which a special resolution was required, the form included with the agenda did not include the Owner’s unit entitlement, as the legislation requires. I also mentioned that the time for returning the form was not correct – it should be 24 hours before the meeting. These comments were based on the presumption that the form supplied was a pre-meeting ballot paper. S15 is where the requirements for a pre-meeting ballot paper are set out.
The reply from the SM is “Section 15 only applies if the matter is to be decided by pre-meeting voting. The motions on the agenda are to be decided at the meeting not before the meeting by pre-meeting voting.” I think he is saying that, as there will be a real meeting, then the motions are not being ‘decided’ by the pre-meeting ballots, and therefore the forms do not have to comply with the legislation. In other words, the rules only apply when there is no meeting in person, and as this meeting has a time and place where people will attend, any sort of form can be used by someone who is not attending.
Does this interpretation stand up? Is there any mechanism by which someone not attending can submit a written ballot other than by proxy or as a pre meeting ballot? Is there some other possible interpretation of that response?
-
Replies
-
I think your SM is correct
Schedule 2 section 10 says voting can be by any means specified in the notice.
There are no other requirements specified.
Also a special , or any other, resolution can be carried on a zhow of hands or majority of votes carries the motion. Only if a poll note is called fo unit entitlements come into play. The SM will calculate these at the meeting.
The SM can insist that the voting paper sent is the only one accepted. However I would say that as long as the voter is jdentifiable and their owing intentions are clear, their vote should count.
Also a special , or any other, resolution can be carried on a zhow of hands or majority of votes carries the motion. Only if a poll note is called [do] unit entitlements come into play
Are you sure.? Section 5(2) says this: In determining a special resolution, the value of a vote for a lot is equal to the unit entitlement of the lot …
Sounds like all special resolutions have to be decided by poll votes whether an owner calls for one or not.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
… as this meeting has a time and place where people will attend, any sort of form can be used by someone who is not attending.
Schedule 1, S28 says strata schemes can decide on “another way” of voting and what that other way of voting should be.
In other words, the secretary can provide a voting form that has been agreed on by the committee and that vote would be allowed (provided everyone has access to it).
But an individual can’t invent their own form. The secretary only has to ensure that anyone who is entitled to vote can do so. They don’t have to accept hand-knitted forms from all and sundry.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
I’m reading it that since the Regulations have taken up the option allowed in 28(3) and specified a way of voting for someone not present at the meeting then that is the way that must be used.
Indeed. And I would go further and say if the committee or OC HASN’T approved an alternative method of voting, then no other method of voting can be used.
In any case, here’s the critical issue – the Tribunal will not overturn a decision in which informal voting or discounted votes played a part unless it can be shown that those informal or discounted votes would have affected the outcome. That said, it’s worth clarifying the processes in your scheme, including having an approved non-attending, non-proxy voting paper, available for anyone who wants it.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
I don’t see much difference between proxy farming and pre-voting. The issue with pre-voting is the strata committee have a disproportionate ability to circulate their opinion to owners, compared to a single owner. Owners pre-vote in alignment with the opinion of the Strata Committee members without ever hearing the view of anyone else.
In a recent example, we sued the OC for some pretty egregious acts against our property rights under the direction of the SC, we prevailed in NCAT and were awarded substantial costs. The SC circulated paperwork to owners making the arguments that NCAT soundly rejected as “unconvincing”, “without merit” and “flawed” yet they still circulated those same arguments to owners in order to entice pre-voting to pass their agenda and cover up their misdeeds. We now have no choice but to sue members in the supreme court.
I think there’s a huge difference between saying “give me your vote and I’ll do the thinking for you” and a form that lists the motions want you tick boxes for Yes, No and Abstain. Better the devil you know is a principle that looms large in strata, that’s why incompetent and self-interested chairs are able to stay in power for so long.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.
Jimmy you say: The secretary only has to ensure that anyone who is entitled to vote can do so.
So who is entitled to vote other than owners? For instance, can a non-owner vote, even if on a strata committee?
And Crispy, you are spot on regarding the power that an SC can have. They have the strata roll, after all. Not only can they email every owner suggesting how to vote, they can also send out emails and newsletters to owners supporting/not supporting a motion or even something as simple as maintaining and repairing common property.
I think strata is a national scandal that needs to have a royal commission.
And here’s a curved ball question Jimmy, when does the strata committee not become an SC? At the beginning or end of an Annual General Meeting? That is, can they still act as committee members when voting on motions takes place?
So who is entitled to vote other than owners?
Non-owners can vote if they have valid proxies from owners. But owners and their proxies can’t vote if they are not financial when the meeting is called and haven’t paid their levies before the meeting. This is what the Act says:
23 Persons entitled to vote at general meetings(1) Persons who have right to vote Each owner, and each person entitled to a priority vote, has voting rights that may be exercised at a general meeting of the owners corporation, but only if the owner or person is shown on the strata roll and, in the case of a corporation, the company nominee is shown on the strata roll.
(2) Exercise of voting rights by joint first mortgagees or joint covenant chargees Voting rights may be exercised at the meeting by joint first mortgagees or joint covenant chargees only by proxy (who may be one of them) duly appointed by all of them jointly.
(3) Exercise of voting rights by owner, first mortgagee or covenant chargee The voting rights of an owner or first mortgagee or covenant chargee of a lot (other than a co-owner, mortgagee or covenant chargee) may be exercised—
(a) unless the owner, mortgagee or covenant chargee is a corporation—in person or by proxy, or
(b) if the owner, mortgagee or covenant chargee is a corporation—by the company nominee in person, or by proxy appointed by the corporation.
(4) Exercise of voting rights by co-owners to be by proxy The voting rights of co-owners of a lot may not be exercised by them individually but may be exercised—
(a) by a proxy (who may be one of them), or
(b) as provided by subclause (5).
(5) Other circumstances in which co-owners may exercise voting rights If, on a vote at a general meeting, the rights of co-owners of a lot are not exercised by a proxy as referred to in subclause (4), one of them may act as such a proxy—
(a) if the other co-owners are absent or those who are present give their consent, or
(b) if paragraph (a) does not apply—if he or she is the owner first named on the strata roll as one of the co-owners.
(6) Exercise of voting rights by owners of successive estates in lot If there are owners of successive estates in a lot, only the owner of the first estate may vote at a general meeting.
(7) Exercise of voting rights where owner holds lot as trustee If the owner of a lot holds it as trustee, a person beneficially entitled may not vote at a general meeting.
(8) Voting rights cannot be exercised if contributions not paid A vote at a general meeting (other than a vote on a motion requiring a unanimous resolution) by an owner of a lot or a person with a priority vote in respect of the lot does not count if the owner of the lot was an unfinancial owner at the date notice of the meeting was given and did not pay the amounts owing before the meeting.
(9) Effect of failure to give strata interest notice This clause does not confer a right to vote on a person deprived of the right by failing to comply with the requirement to give a strata interest notice.
When does the strata committee not become an SC? At the beginning or end of an Annual General Meeting? That is, can they still act as committee members when voting on motions takes place?
Owners can vote with their committee or against it as they please. There is no law that says all the members of a committee have to vote en masse or prevents them from doing so. Committee members are only acting as committee members in a committee meeting. Unless theyare office-bearers they have no function or privileges beyond being ordinary owners.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.