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Just seeking clarification for NSW please: Can a proxy vote be cast in AGM elections for OC committee members, even though candidates are not usually named in the AGM agenda paper? This is of concern for two reasons if the answer is Yes: 1. The person granting a proxy to another person may not know who the committee candidates are, as candidates can be nominated as late as the AGM itself. 2. Each incumbent committee member will be able to hold up to 5pc of owners as proxies, which in a seven-member committee, would be up to 35pc, giving them a very good chance at self-renewal if proxies are cast for each other.
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The prescribed proxy form allows the proxy giver to limit what the proxy holder is able to vote on, otherwise they could use the votes for the committee election.
My mind is still boggling from your arithmetic but bear in mind that owners can only hold extra proxies if they are OVER the whole numbers as calculated for 5 percent. E.g. there would have to be 40 lots for them to get two proxies and 140 lots for them to get seven proxies.
So lets assume that you have 141 lots and all your committee members have seven different proxies each, plus their own votes, it means each of them could theoretically have eight votes or a total of 56 votes for the cross-voting in the election. The means there are still almost 90 votes out there.
My tactics in that case would be:
Organise as much support as you can from proxies and owners attending the meeting.
Then prepare to challenge the validity of nominations but be crafty about it. The process should be that the Chair calls for nominations, then the owners vote on the number of seats and if the former outnumbers the latter an election is held.
So let the nominations be recorded, then let the number of seats be established, then challenge any nominations you think may be suspect (referring to Section 31 and Section 32 of the Act and Section 9 and Section 10 of the Regulations.
For instance, co-owners can’t self-nominate and owners can’t nominate more than one person, and co-owners in one lot can’t both be on the committee unless they own two lots. Unfinancial owners can’t be nominated (although they can make nominations).
My point is, committees that think they have the election sewn up get lazy and slack about procedure and they are bound to slip up. If they have nominated someone who isn’t eligible but they have established the committee should have seven seats and you are the nominee with the next highest vote, you’re in.
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.
You are correct when you wrote that candidates for a committee are mostly not known until nominations are called for at the AGM. Good stratas make clear in the agenda which if any of the current members wish to stand again.
Proxy forms can be of two types: (a) one where the proxy holder has been authorised to to vote on all matters, as he sees fit (i.e UNRESTRICTED) or (b) one where the proxy holder has been authorised to vote on only certain matters. In this case the authoriser would list what those matters are (not what MOTIONS they are) and how the proxy holder is to vote.
Assume we don’t know who is running for a seat on your committee.
You could note your views on the proxy form along the lines of “Strata Committee – when it comes to nominating, seconding and voting for committee members, vote against Mr A, Mrs B and Ms C. Vote in favour of Mr D. Once A, B, C and D have been voted on or dealt with, as authorised by the proxy giver, feel free to vote as you please”.
As the proxy form needs to be given to the secretary or agent before the AGM, the proxy giver’s voting intentions will be clear. This is unsurprising if one is giving the proxy form to someone she doesn’t know well e.g. a neighbour if one is new to the strata or a harmless committee member.
But say the proxy giver, you, don’t want your intentions to be so clear so long before the vote, you can ask ANYONE to be your proxy. The person need not live in the strata. It can be a friend, colleague etc. In such a case you would complete the proxy form in favour of say Ms Jones, your friend. Before the start of the AGM, in accordance with the agent’s instruction, you should email him/her the proxy or hand it in at the AGM’s start. Such a proxy would be I recommend, UNRESTRICTED. You could make clear to Ms Jones how she is to vote on every matter and those intentions need not be telegraphed on the proxy form itself.
You are correct about the incumbents with 35% or more of the votes dictating how the vote will go. This is politely known as “proxy harvesting”, which is sad to say, not only a threat to democracy (by super gluing a long standing member or long standing members to their committee seats) but is also a consequence of owners (a) being easily influenced as to how to vote by current committee members and (b) falling victim to granting an UNRESTRICTED proxy to a committee member (this happens often when a committee member includes his or her perspective of the past year in the agenda and cynically urges everyone to “get involved” by attending the AGM and if that is not possible, then by passing your proxy form to a ‘committee member of your choice”).
As in your strata as in most, committees often stand or fall together, it doesn’t matter one jot who on the committee gets the proxy, as they’ll all vote the same way.
Proxy forms can be of two types: (a) one where the proxy holder has been authorised to to vote on all matters, as he sees fit (i.e UNRESTRICTED) or (b) one where the proxy holder has been authorised to vote on only certain matters.
Not so. There is one, and only one proxy form or format and it allows either option.
In this case the authoriser would list what those matters are (not what MOTIONS they are) and how the proxy holder is to vote.
I don’t see the difference between “matters” and “motions” (although it uses the words “matters” on the form). If a “matter” isn’t included in a motion, then it can’t be voted on.
Before the start of the AGM, in accordance with the agent’s instruction, you should email him/her the proxy or hand it in at the AGM’s start.
This only applies for smaller schemes of less than 100 lots. Larger schemes have to have their proxies in 24 hours before the scheduled start of the meeting.
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.
I recall an amusing AGM when proxies were used in the election of committee members. A unit owner wrote instructions to their proxy on the proxy form that if either I or one other member of the committee were nominated, then his proxy should vote against us. The consequence was an election held separately for each nominee, which we usually don’t do. I was reelected as was the other person targeted. Another nominee failed to get 50%, which I was pleased about. I think this was the only time someone who wanted to be on our committee did not get on.
Jimmy-T mentioned that there is one proxy form only. This is correct. I was unclear earlier in communicating that the proxy giver can specify what restrictions if any she wants to put on the one standardised proxy form.
My point on the proxy giver referring to “matters” v “motions” is to interdict what I heard happened once some years ago at a scheme I was not involved with: the agenda listed say 9 Motions and a proxy form required the proxy holder to vote against say Motion 7, without specifying what the matter under consideration was.
As the scheme was self managed and the committee often strayed from the rules, not that anybody cared about such behaviour, at the AGM the Secretary said he had to leave early and while he would not be around for all the motions, he would be present for voting on four motions.
So rather than say vote on the first four motions as per the agenda (after which he was to leave), he unilaterally and from what I heard, without dissent, re-badged the original “Motion 7” as the new “Motion 4”, with original Motion 4 becoming new Motion 5, original Motion 5 becoming new Motion 6 and original Motion 6 becoming new Motion 7.
In the process this neutering the proxy holder’s express wishes. He was now voting against the AGM’s Motion 6.
As the proxy holder was an uninterested party and one that was never apprised of the matter the proxy giver wanted him to vote on, he (like everyone else) raised no objections to the relisting of motions at the AGM.
By the time the proxy giver rcvd the minutes, weeks later, it was too hard and too late to return the horse to the stable.
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