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  • #41858
    Ethicsfirst
    Flatchatter

    Am I correct to think that:

    a) there is no legal provision for proxies to be given to SC members to be used at a SC meeting;

    b) there is provision for appointment of acting members to the SC, which can include existing SC members;

    c) even if an existing SC member has an appointment as an acting member, that cannot be used to make up the numbers to form a quorum for an SC meeting?

    For example, if the number of SC members was approved to be nine at the last AGM and only four were present at a meeting would there be a quorum if three of those in attendance had acting member appointments from absent members?

    • This topic was modified 1 month, 1 week ago by .
Viewing 15 replies - 1 through 15 (of 16 total)
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  • #41865
    Jimmy-T
    Keymaster

    To answer your questions:

    a) and b) Proxies are not used at strata committee meetings. Instead, with the approval of the committee, another owner – including someone who is already on the committee – can speak and vote as an acting member.  Same-same but different.

    c) Acting members can’t be used to make up the quorum as their status has to be approved by the committee and the quorum has to be established before the committee can vote.

    In the scenario you describe, the meeting would be invalid, as would any decisions taken at it (or at least they’d be subject to challenge).

    #41870
    Sir Humphrey
    Strataguru

    I am confident that JT would be correct about conduct of SC meetings in NSW. However, why do you ask the question? If a decision on a matter is finely balanced, it would be poor form for a subset of committee members to hold a meeting and decide one way when some members were unable to attend and they had made it known that their view was the other way. Even if legal requirements were observed for proper notice of the meeting and there was sufficient attendance for a quorum, the decision would be liable to being reversed next time the full membership of the committee could meet. If the decision had been acted on and could not be reversed, it would sour relationships.

    On the other hand, if the purpose of the meeting was to decide an uncontroversial matter in which all were agreed, I think you could just discuss by email or other means to make the decision ‘out of session’ and record the result in the minutes of the next formal meeting.

    #42145
    bangles
    Flatchatter

    Just so I am clear, if a SC has 7 elected members, 1 member decides to go on holidays for a couple of months, the member apparently did not have  enough confidence in remaining 6 members to nominate one of them to vote on their behalf so notified SM and other SC members that they were appointing another Owner as their proxy. From previous responses if I understand correctly this is allowable.  I am however unclear if the appointed proxy is only to join in and speak for/against/vote on any agenda matter at a meeting or  do they assume the full duties of the holidaying members eg: obtain quotes/engage trades/instruct SM etc. Thank you in advance for any assistance.

    #63876
    strata1101
    Flatchatter

    I have a question to JT, section 34(1) has the words, with the consent of the strata committee, does this mean that  with the consent of the majority members who attend the meeting every time?  for example,  if  all nine members attended the meeting this month, can this committee give an approval to the acting member for next meeting? does this comply with section 34?

    #63880
    Jimmy-T
    Keymaster

    The Act says:

    A member of a strata committee may, with the consent of the strata committee,
    appoint an owner or company nominee of a corporation that is an owner who is
    eligible to be a member to act in his or her place as a member at any meeting of the
    strata committee.

    The number of people voting doesn’t matter as long as a quorum has been achieved before the meeting. After that, I don’t know.  What does “at any meeting” mean? I think it means that the committee can agree that the stand-in should be allowed at any future meeting that the elected member can’t attend.

    #63889
    strata1101
    Flatchatter

    of course I mean there is quorum as precondition. I agree with your last post, if your thinking is right, then at the first committee meeting immediately after AGM, one member can’t attend and submit a substitute nomination form and committee approved the substitute as acting member, then this acting member should be allowed to attend at any meeting of the strata committee until next election of committee at AGM. is this correct ? if this is correct, then there is another problem, does this acting member makes quorum for next meeting?

    #63891
    Jimmy-T
    Keymaster

    I’m speculating pretty wildly here but reading the Act literally, it seems that if the motion is presented in the form that the substitute member should be permitted for any meeting that the elected member doesn’t attend, then they are entitled to vote at subsequent meetings and therefore could count towards the quorum.

    This all pretty arcane stuff and would only come up in a scheme where there was considerable discontent about the way the committee was running things.  I also doubt very much if decisions made while the committee was technically unsound would be overturned or rescinded.

    #63896
    strata1101
    Flatchatter

    I agree with JT’s early post that the first substitute nomination form doesn’t make quorum in the first committee meeting after AGM, it does need approval. but once approved in the first meeting, section 34(2) has clear saying

    (2) The owner or company nominee appointed is, while so acting as a member, taken to
    be a member.

    that means acting member is a committee member, and will not lose this member status even after the meeting, so if this acting member attends next committee meeting, then this acting member should makes quorum. am I correct?

    #63908
    Jimmy-T
    Keymaster

    that means acting member is a committee member, and will not lose this member status even after the meeting, so if this acting member attends next committee meeting, then this acting member should makes quorum. am I correct?

    More or less, yes, but obviously they lose their member status as soon as the person for whom they are acting resumes their spot on the committee.

    Again, I hasten to add that I’m not 100 per cent sure as I’ve never encountered this specific dispute nor seen how it was resolved. It’s a very specific and arcane situation.

    • This reply was modified 1 month, 1 week ago by .
    #63919
    strata1101
    Flatchatter

    Thanks Jimmy for your great reply. Here is an example.
    Committee member A and committee member B are good friends, immediately after AGM,  A wants go to holiday for a year, and submitted substitute nomination form and authorize B as acting committee member, then committee approved the nomination.

    Can we confirm following

    1. member A does not need to submit the form any more for all the following committee meetings before next AGM
    2. member B got two votes, one for B and one is on behalf of A
    3. above points 1 and 2 complies with strata act section 34

    what’s your opinion?

    #63923
    Jimmy-T
    Keymaster

    If the committee agred to the substitution for the whole year, then it probably is as you outlined and B has two votes.

    If a super-majority of owners is concerned about this, then you can hold an EGM and pass a special resolution to remove either or both of these members from the commitee.

    Otherwise, you can propose a motion to the committee that it rescinds the substitution as it was a cynical and deliberate ploy to give one owner two votes on the committee.  The absentee committee member muct have known they were going on holiday for a year so this is very much dirty pool.

    Even if the committee doesn’t rescind the substitution, at least your objection will be on the record.

     

    • This reply was modified 1 month, 1 week ago by .
    #63926
    Jimmy-T
    Keymaster

    There is another option which is probably a long shot and that is to take action at NCAT under Section 238, for the removal of a committee member.

    Section 238 says this:

    238   Orders relating to strata committee and officers

    (1)  The Tribunal may, on its own motion or on application by an interested person, make any of the following orders—

    (a)  an order removing a person from a strata committee,

    (2)  Without limiting the grounds on which the Tribunal may order the removal from office of a person, the Tribunal may remove a person if it is satisfied that the person has—

    (a)  failed to comply with this Act or the regulations or the by-laws of the strata scheme, or

    (b)  failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office.

    While it would be hard to argue the specifics of either 2a or 2b you could argue that the absent member never intended to serve on the committee and, as such, misled the owners when they stood for election.  The very fact that they announced that they would not serve for a whole year and passed their vote to another owner immediately after the AGM may be considered grounds for removal.
    Remembering that this will have to go to mediation first, your committee might decide to rescind the substitution rather than allow a vacancy to be created that they would be under pressure to fill.
    #63927
    strata1101
    Flatchatter

    this is very complicated situation, if member A and member B are husband and wife, there will be argument why can’t one stand for two while they own property separately. and strata committee and OC both are happy with acting member arrangement for a year. anything wrong with the member? any clear misconduct not complying with strata act?

    #63929
    Jimmy-T
    Keymaster

    The Act forbids more than two members of the same household both being members of the committee unless they own two or more properties in the block.

    I’m not sure (from the way you have written your post) what it is that you are actually saying.  Are the people you are actually referring to spouses?  Do they also own separate properties? Or is this just hypothetical?

    #63930
    strata1101
    Flatchatter

    let’s make a clarify, member A bought unit 1, member B bought unit 2, one year later, they become spouses or close partners and both become committee members, and strata committee and OC both are happy with acting member arrangement for a year which member A nominated B as acting member, anything wrong with the member? any clear misconduct not complying with strata act?

    strata act does allow acting member attend any meeting of committee on behalf of member A, is anything wrong with member A? or you think member A failed to exercise due care and diligence, or engaged in serious misconduct, while holding the office ?

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