#12812
Billen Ben
Flatchatter

    I love your work wombat.

    Cl 10(1) of Sch 2 stands no matter what a persons financial position but the plain English Act is not so plain English. I actually agree with wombat from just, face value, reading the Act that being not financial does not extinguish entitlement to vote; it just means the vote doesn't count BUT I also acknowledge that is not how it works. It is one of those areas where what it appears to say is not what it means in operation.

    Being non financial means your not entitled to vote. It is legal consensus. If someone has a case law quote that would really help.
    You will find it on page 303 of high profile strata solicitor Alex Ilkins book NSW Strata and Community Schemes Managment and the Law; 4th Edition. Not financial = no entitlement to vote unless it is a unanimous matter.

    It also means that a motion on an AGM agenda should not be put to the meeting if submitted by a non financial person. The motion will get on the agenda but it should not be put to the meeting.

    It also means only votes that are potentially “countable” at a meeting count toward determining a quorum.

    One of the sad things about legislation is that people cannot go back to the authors and ask; what did you mean?

    I believe all legislation should come with an accompanying plain English companion that does it best to describe the purpose and intent of each section and clause in the legislation.

    There is a twist but;
    How would people like to have a vote exersized even though they are not financial?  The key to doing so is found in SCS 10/34078. This matter was dealt with by a Senior CTTT Member acting as a Strata Schemes Adjudicator.

    The Adjudicator stated in his reasons, words to the effect, that a non-owner was entitled to vote at the AGM because the non-owner was a proxy. The non-owner is entitled to vote and so is entitled to submit motions. So any motion on the AGM agenda submitted by the non-owner, who was a proxy, was fine.

    Now it gets interesting. There is no financial restriction on appointing a proxy; i.e. it does not matter if a person is financial or not, they can still appoint someone else as their proxy.  By virtue of being appointed as a proxy a person is then entitled to vote; according to the “logic” of the Adjudicator in SCS 10/34078.

    By appointing a proxy the question of the financial status of the person who is now entitled to vote would relate to someone other than the non financial owner. The non-owner (the proxy holder) is entitled to vote, according to the “logic” of SCS 10/34078, and a non owners being financial or not financial is a meaningless question.

    If a non financial owner gives a proxy to another owner then the question of clause 10(8) of Sch 2 would become “is the other owner financial” because the other owner is now entitled to that vote; according to the “logic” of the Senior Member in SCS 10/34078.

    In reality the proxy is merely conveying the owners vote, for the owner, in the owners’ absence, if the owner is financial. If the owner is not financial then the proxy can vote all day but that vote should not be counted but if one wants to use SCS 10/34078 as “the benchmark” for who has voting entitlement then the door is open for non financial people to give voting entitlement to others via a proxy, others who could then vote by virtue of being a proxy without the need to be financial.