Question: Our caretaker who runs an accommodation business sits on the committee. They send a ‘how to vote’ sheet with suggestions for resolutions on AGM or ordinary meeting agendas. Can we stop this?
I am a lot owner of a complex for tourist accommodation. We have a caretaker contract with the same company that runs an onsite accommodation business. This person, who is correctly entitled to be on the Owners Corporation Committee, habitually sends a ‘how to vote’ sheet for resolutions on AGM or ordinary meeting agendas. There are short comments on each motion that may be construed as advice from the OC committee but often seem personal opinion. Occasionally, the correspondence has the name of the treasurer added. Owners can simply tick the recommended boxes and return them.
Is this undue influence/bias on the voting outcome? Results certainly seem to indicate that it is.
How can it be stopped?
Answer: There is nothing in the Act that prevents a person from distributing a how to vote card on motions at a general meeting.
Notions of undue influence or bias do not apply to voting at a general meeting of an owners corporation. This is because owners of lots do not owe any duties when they cast their vote at a general meeting and can vote in their own self-interest.
There is nothing in the Strata Schemes Management Act 2015 that prevents a person from distributing a how to vote card on motions at a general meeting. However, the general law applies so that any how to vote card should not be defamatory, contain misrepresentation or be misleading and deceptive.
If the caretaker’s how to vote sheet purports to be given on behalf of the strata committee or the treasurer when this is not correct, then the caretaker may be engaging in defamation, misrepresentation or misleading and deceptive conduct, and legal advice should be sought especially if that results in the motions passing that benefit the caretaker or the election of the caretaker to the strata committee.
It is not clear how an owner can vote at a general meeting simply by ticking boxes on the caretaker’s how to vote sheet and returning it. An owner can either appoint a proxy or vote by pre-meeting voting methods. If the owner gives a proxy, then they can indicate on the proxy form how the proxy is to vote. If the owner fills in the pre-meeting voting form, then that is how the owner is voting. If the how to vote sheet is a proxy form or a pre-meeting voting form filled in with votes, it is still up to the owner to decide whether to accept that, sign it and return the form.
Ultimately, if a majority of owners voting agree with the caretaker and no legal wrong is committed in the process, then the only option for owners who do not agree with the result is to campaign to convince enough owners to form a majority with them that is not aligned with the caretaker.
This post appears in the October 2021 edition of The NSW Strata Magazine.
Carlo Fini
Lawyer (NSW)
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