This article discusses what strata owners in Western Australia can do if they have concerns about how proxy votes and AGM minutes were managed under the Strata Titles Act 1985.
Question: Should I be concerned about the way our strata manager handled proxy votes and the AGM minutes?
Our strata company of 27 units recently held its AGM, with only three owners present, including one council member. The strata manager chaired the meeting but didn’t clarify who else was involved. The next day, I received the minutes showing ten votes — three from those present (including one proxy), three electronic votes, and three proxies held by the strata manager for the owner of three units. A few days later, when I rechecked the minutes, all the proxy votes had been removed, leaving only six votes recorded. I’m not comfortable with how the strata manager handled this meeting. What can I do to address this? I’m 82 years old and have ongoing concerns about both the strata manager and the council of owners.
Answer: The Act sets out clear provisions governing how to conduct general meetings of a strata company.
The Strata Titles Act 1985 (WA), as amended in 2018 (the Act), sets out clear provisions governing how general meetings of a strata company are to be conducted, including requirements for quorum, proxy appointments, electronic attendance, and record keeping.
Under section 130 of the Act, a quorum for a general meeting is present when owners entitled to vote and who are financial in respect of all contributions are personally present or represented, holding at least 50% of the total number of lots in the scheme. If a quorum is not achieved within 30 minutes of the time appointed for the meeting, those eligible persons in attendance at the meeting constitute a quorum. This provision ensures that meetings can proceed even if not all owners participate, while still protecting the integrity of the decision-making process.
In accordance with section 124 of the Act, there is no prescribed proxy form. However, a proxy appointment is valid so long as it is made in writing and clearly identifies the appointor and the proxy. Unless the appointment states otherwise, a proxy is taken to be appointed for all general meetings and for all purposes of the strata company. The proxy instrument may, however, specify limitations on the proxy’s authority if the owner so chooses. A proxy may be, but is not required to be, a member of the strata company.
The amended Act recognises the growing use of digital communication. Section 131 of the Act provides that a person (including a proxy of a member of a strata company) may, in accordance with any requirements of the scheme by-laws, attend and vote at a meeting of a strata company by telephone, video link, internet connection or similar means of remote communication provided that provision of relevant facilities does not place an unreasonable burden on the strata company.
Most professional strata management software platforms provide for electronic voting either before or during a meeting being held, or for the use of Outside Meeting Resolutions. If an owner is not casting their votes electronically during the meeting (which may be provided but is not mandatory), electronic votes submitted prior to the meeting can only be cast at the meeting through a valid proxy appointment. Electronic votes submitted before the meeting are considered part of a proxy instrument that specifies limitations and/or directions on the proxy’s authority. A notice of a general meeting must include notice of each method of voting, whether by electronic communication or otherwise, that is acceptable to the strata company (section 129(2)(d) of the Act).
Section 125 of the Act prescribes that if a member of a strata company who is an individual and sole owner of a lot is present at a general meeting, the member must cast the vote for the lot personally rather than by proxy. A person also must not vote as a proxy of another person on a resolution relating to the provisions of goods, amenities or services to the strata company if the person so voting (the proxy) has a direct or indirect pecuniary or other interest in the provision of the goods, amenities or services. A common example is where a resolution is made in relation to a new strata management contract and owners have appointed either the strata manager or the chairperson (if the strata manager is being appointed to chair the meeting) to vote as their proxy and the proxy instrument does not expressly authorise the proxy to vote on the resolution and does not specify the proxy to vote for or against the resolution.
Section 125(4)(a to d) outlines that a resolution in relation to the making, varying or extending a strata management contract must specify the name of the strata manager, the commencement and end date of such a contract, each proposed variation (if applicable) and the remuneration that is payable under the contract.
It is also our opinion that, when appointing the strata manager as a proxy for an owner in the scheme and the owner does not express any direction to the proxy holder how they wish to cast their vote, the strata manager shall exercise the proxy votes in relation to motions put and proposed by the council of the strata company so notified on the agenda for the meeting but not cast a vote on amendments to motions brought forward by the floor at the time of the meeting. While section 124(5) of the Act states that the Regulations may impose limitations on a strata manager being appointed as a proxy, including limitations on the number of lot owners or unit entitlements of lots for which a strata manager may be appointed as a proxy, the Regulations are silent on this.
It is important to keep accurate minutes of any strata company general meetings, as they are an essential part of the strata company’s records. Minutes must record the date, time, and place of the meeting, the persons present (including proxies and electronic attendees), the resolutions passed, and the results of any votes. The minutes should also indicate whether a quorum was achieved at the time appointed for the meeting or whether a quorum was constituted upon the passing of 30 minutes from the time appointed for the meeting.
Votes are to be counted and also recorded in the minutes, and in case of an ordinary resolution, must be counted and recorded by the number of votes cast unless any person entitled to cast a vote demands that they be counted by the number of unit entitlements of the lots for which votes are cast. In that case, the votes must be counted in that manner; if the resolution voted on is an unanimous resolution or a resolution without dissent, the votes must be counted and recorded by the number of votes cast, and we recommend, in the case of a resolution without dissent, the minutes also record the number of each lot voted in favour and against. In case of a special resolution to be voted on, the votes must be counted both by the number of the votes cast and by the number of unit entitlements for which votes are cast. Again, in that case, we also recommend that the minutes record the number of each lot vote in favour and against, with their respective number of unit entitlements. Refer also to section 122 of the Act.
Minutes of General Meetings must be distributed to all owners within a reasonable period after the meeting and retained for at least seven years as part of the official records of the strata company. We consider a reasonable period to be within 14 days of the meeting date.
Minutes of General Meetings are to be confirmed as a true and correct record of the meeting at the next General Meeting of the strata company. Owners who dispute the accuracy of the minutes may request in writing that an amendment be considered and voted upon at a subsequent General Meeting. The minutes are the chairperson’s minutes, so all enquiries are to be directed to the chairperson. If the strata manager was appointed the chairperson for the purpose of the General Meeting, these enquiries should be directed to the strata manager.
Please note that the above is general information only and does not constitute legal advice. We recommend obtaining legal advice if you require further clarification in relation to your scheme’s specific circumstances.
Marietta Metzger
magixstrata
E: [email protected]
P: 08 6559 7498
This post appears in Strata News #769.
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Read next:
- WA: Q&A Can you lodge a proxy before the AGM date is confirmed?
- WA: Q&A Owners can challenge EGMs that exclude owner motions or fail to follow proper procedure
- WA: Q&A Can council members who repeatedly appoint a proxy for meetings be removed?
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