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Hi Everyone – asking for a mate at work.
They’re a small strata scheme of 12 units plus 6 parking spaces/utility lots. The EC (of one) has called an EGM to change the by-laws to have no pets and has had the usual bout of issues such as the SM being obstructive to the pro-dog side/not providing information on chairperson/only advising select owners/tenants not being notified/no noticeboard in the scheme/ no EC governance (can’t identify who is secretary and SM won’t tell) etc.
My mate (as a tenant) has easily assembled the votes needed to block the special resolution made by the scheme, but we’ve been looking over the proxy forms and legislation and had a few question;
- Is putting multiple lots onto a single proxy form legal in the case of multiple units/ single unit and single utility lot or does this invalidate the proxy form? i.e. I put my residential lot and parking space on a single proxy form, despite them having separate unit entitlements.
- Would a single proxy form listing multiple lots count as one proxy under the legislation (i.e. schemes under 20 only have one allowable proxy per person)? i.e. Proxy box filled out as: Lots 12 and 16 counting as combined unit entitlement for a vote.
- Can my mate hold one proxy, and his wife another?
- What should the actions be if the SM/EC member doesn’t play by the new rules?
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zerotwoalpha said1
Is putting multiple lots onto a single proxy form legal in the case of multiple units/ single unit and single utility lot or does this invalidate the proxy form? i.e. I put my residential lot and parking space on a single proxy form, despite them having separate unit entitlements.
- Would a single proxy form listing multiple lots count as one proxy under the legislation (i.e. schemes under 20 only have one allowable proxy per person)? i.e. Proxy box filled out as: Lots 12 and 16 counting as combined unit entitlement for a vote.
Each lot with voting rights needs to have its own proxy form. You can download the official proxy form here. Your parking space may not have voting rights attached but will count towards the total unit entitlement of your lot.
2. Can my mate hold one proxy, and his wife another?
Yes. Just make sure the owners giving the proxies are “financial” – i.e. their levies are up to date.
3. What should the actions be if the SM/EC member doesn’t play by the new rules?
“Doesn’t play by the new rules” is a pretty wide scope. But if you mean they don’t follow the new laws on proxies, just quote the law at them.
If they persist tell them that you will be challenging the decision at NCAT under Section 25 and Schedule 1, Division 2, Section 26 (both below).
25 Order where voting rights denied or due notice of item of business not given
(1) The Tribunal may, on application by a person entitled to vote on a motion for a resolution of an owners corporation at a general meeting, order that a resolution passed at the general meeting be treated as a nullity on and from the date of the order.
(2) The Tribunal must not make the order unless the Tribunal is satisfied that the resolution would not have been passed but for the fact that the applicant for the order:
(a) was improperly denied a vote on the motion for the resolution, or
(b) was not given due notice of the item of business in relation to which the resolution was passed.
(3) An application for an order may not be made unless:
(a) an application for mediation of the dispute was made not later than 28 days after the date of the meeting at which the resolution was passed, or
(b) if an application for mediation was not made, the application for the order was made not later than 28 days after the date of the meeting at which the resolution was passed.SCHEDULE 1, Division 2, 26 Appointment of proxies
(1) Duly appointed proxy
A person is a duly appointed proxy for the purposes of this Part if the person is appointed as a proxy by an instrument in the form prescribed by the regulations and the form is signed by the person appointing the proxy or executed in any other manner permitted by the regulations.
(2) Form of proxy
The prescribed form is to make provision for the giving of instructions on:
(a) whether the person appointing the proxy intends the proxy to be able to vote on all matters and, if not, the matters on which the proxy will be able to vote, and
(b) how the person appointing the proxy wants the proxy’s vote to be exercised on a motion for the appointment or continuation in office of a strata managing agent.
(3) Proxy to be given to secretary of owners corporation
The instrument is ineffective unless it contains the date on which it was made and it is given to the secretary of the owners corporation at least 24 hours before the first meeting in relation to which the instrument is to operate (in the case of a large corporation) or at or before the first meeting in relation to which the instrument is to operate (in any other case).
(4) Period for which proxy effective
An instrument appointing a proxy has effect for the period commencing with the day on which it takes effect and ending with the later of the first anniversary of that day and the conclusion of the second annual general meeting held after that day, unless it is sooner revoked or a shorter period is provided by the instrument.
(5) Proxy cannot vote if person appointing proxy votes
A proxy cannot exercise a vote in relation to a matter if the person who appointed the proxy is exercising personally a power to vote on that matter.
(6) Effect of subsequent proxy
An instrument made by a person appointing a proxy has no effect if the person makes a later instrument appointing a proxy and delivers it to the secretary of the owners corporation in accordance with subclause (3).
(7) Limit on number of proxies that may be held
The total number of proxies that may be held by a person (other than proxies held by the person as the co-owner of a lot) voting on a resolution are as follows:
(a) if the strata scheme has 20 lots or less, one,
(b) if the strata scheme has more than 20 lots, a number that is equal to not more than 5% of the total number of lots.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.
In a scheme of fewer than 20, each proxy holder can only hold one proxy. So if Tom, Dick and Harry want to give their proxies, they have to go to Bob, Ted and Carole.
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.
Just out of curiosity: Does NSW have the option to lodge an ‘Absentee vote’ rather than appoint a proxy?
Here in the ACT an owner can do either. Meeting papers must include a form(s) (which is approved by the EC) to enable both forms of voting.
A proxy can be appointed to vote as directed for some or all motions or as they see fit and can vote on the owner’s behalf on any procedural motion or motion to amend a motion that might come up.
On the other hand, an absentee vote can be submitted for each motion that is listed on the agenda. Obviously you can’t have an absentee vote on a procedural or amendment motions because you don’t know about them in advance.
Perhaps this has been covered, but schemes of >20 but <40 lots seem to be in a grey area.
“(a) if the strata scheme has 20 lots or less, one,” is clear enough.
“(b) if the strata scheme has more than 20 lots, a number that is equal to not more than 5% of the total number of lots.” conveys that, in a scheme of up to 39 lots, the limit remains one.
I am in a block of 35. I am certainly not looking to be an empire-builder, and I don’t think any of my SC colleagues are either, but only a small minority of absentee owners typically turn up to general meetings, giving their proxies to ‘the chairman’. If they don’t know any other owners, and most of them don’t seem to, they could be disenfranchised if the chairman (or any other owner known to them and ready to be nominated) is limited to holding one proxy. Even rounding the permitted number up from 1.75 to 2 could still leave things a bit tight.
zerotwoalpha – Here is an extract from page 31 of
https://www.fairtrading.nsw.gov.au/pdfs/About_us/Publications/ft045.pdf
To be entitled to vote, lot owners (or a nominee in the case of a company-owned lot) must first give a notice of a right to vote to the secretary of the owners corporation. The notice must be shown on the strata roll. The owners corporation can decide how meetings are to be held and the method of voting. This includes enabling voting and/or meeting participation through technology such as email, teleconference, video conference calls and the use of voting websites. Pre-meeting electronic voting is another option that owners corporations can choose to allow (through a general resolution vote). Electronic voting cannot be used for elections.
And
If agreed to by the owners corporation, meetings can be attended remotely by phone or another means. (My emphasis added)
Tenants rights are located on page 32.
To avoid the default position of the proxy vote, which may not suit every scheme, I suggest that your friend asks the owner of his Lot to raise a Motion to be included at your General Meeting to allow pre-meeting electronic voting for those owners who cannot be present at the meeting (aka an absentee vote). That way every owner, whether they are present or absent, gets an opportunity to submit their own vote.
However, as your friend’s EGM has already been called any such Motion will not be able to be included on the Agenda at this meeting, but it may be included on the Agenda of the next meeting.
Proxy votes are the only alternative in your friend’s current situation if they are unable to attend the meeting in person.
excathedra – Your scheme, which contains 35 lots, will have 1 proxy vote. A scheme which contains 40 to 50 Lots will have 2 proxy votes.
If you are unable to conduct ballots for Motions at General Meetings then I suggest that you raise a Motion to obtain support for pre-meeting electronic voting.
An owners corporation can decide by ordinary resolution with a simple majority to allow voters to vote electronically. If this happens, your ‘absentee’ owners can send an electronic vote to the secretary. Electronic voting is very common in other States. This may avoid your proxy dilemmas and also solves the issue of attendance for the purposes of achieving a quorum. An absentee ballot is deemed to be an attendance.
Note that electronic voting cannot be used for the election of committee members.
See the comment to zerotwoalpha.
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