Question: Our council of owners resolved for seven members, but only four were elected. Does a proxy vote cast by a physically present member count towards the quorum of four if only three members are physically present?
I reside in a survey-strata scheme in Western Australia. At our recent AGM, a resolution was passed that the council of owners (COO) would comprise seven members. Only four were nominated and subsequently elected. Our governance by-laws provide that if the COO consists of seven members, the quorum is four (by-law 3.11).
At a recent COO meeting, only three of the four elected members were physically present. One of those three held a proxy for the absent fourth member and cast two votes accordingly. Does this arrangement meet the quorum requirement?
Based on Re Owners of Glenway Gardens Strata Plan 12305 [2008] WASAT 103, the Tribunal found that quorum is determined by the number of council members resolved at the AGM, not the number elected. Therefore, if the resolution was for a seven-member council, the quorum remains at four.
Does a proxy held by someone already physically present count toward quorum? Or does a meeting with only three physically present fall short of the required four?
Answer: Standard governance by-law 8(3) allows a council member to appoint an owner of a lot to act in their place at a council meeting.
Under standard governance by-law 4(11) (Schedule 1 of the Strata Titles Act 1985 (WA)), the quorum for a meeting of the council is determined based on the number of council members resolved at a general meeting of the strata company (usually at an Annual General Meeting (AGM) each year). In your case, as the AGM resolved that the council would comprise seven members, the quorum is accordingly set at four, as provided by your scheme’s governance by-law 4(11).
In relation to the participation of proxies and quorum:
Standard governance by-law 8(3) allows a council member to appoint an owner of a lot to act in their place at a council meeting. When such an appointment is properly made, the substitute is taken to be a member of the council for that meeting and is counted towards a quorum and entitled to vote.
Therefore, based on the scenario you have described:
- Three elected council members were physically present; and
- One of those present was properly appointed under By-law 8(3) to act in place of a fourth, absent member;
It is our opinion that the quorum of four was met, and the meeting was validly constituted.
Further, by-law 8(5) provides that if the person appointed under sub-by-law (3) is also a member of the council, they may vote both in their own capacity and as a proxy for the member they have been appointed to represent. By-law 8(4) also confirms that an appointee may be any owner of a lot (or, in the case of a corporation, an individual nominated under Section 136(2) of the Act), whether or not they are already a council member.
While the by-laws are silent that such an appointment be made in writing, we recommend that all appointments to act in another member’s place be confirmed in writing to avoid any uncertainty regarding their validity.
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: marietta@magixstrata.com.au
P: 08 6559 7498
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