WA: Q&A Proxy Voting and the Resolution Without Dissent

Section 124 of the Strata Titles Act 1985 states that an instrument appointing a proxy to cast a vote must be in writing and executed by the appointer or the appointer’s attorney.

In my opinion, “in writing” means in a printed, written or typed document.

Therefore, I would suggest that an email from an owner telling another owner to be their proxy at a meeting without completing a proxy form with their signature on it is not a valid proxy.

We suggest that legal advice be obtained.

Please further note that a proxy has no effect if the person who gave the proxy attends the meeting and votes in person.

Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 08 6559 7498

This post appears in Strata News #711.

Question: A husband and wife have one vote only at an AGM. Can both parties speak to a motion?

A husband and wife own one property. While they have one vote only at an AGM, and one party will give the other their proxy to vote, can both parties speak to a motion?

Can one party give their proxy to the other owner to speak on item X, and then the proxy be passed back to the first party to speak on item Y?

Answer: Co-owners may only cast the vote through jointly appointing a single proxy.

Let’s look at the black and white:

Section 126(b)(iii) of the Strata Titles Act 1985 (STA) stipulates that if there are co-owners of the lot, the co-owners may only cast the vote through jointly appointing a single proxy.

Section 124(3) allows the appointer to limit the appointment of the proxy in any specified way, so the appointer may provide the proxy direction on how to vote.

What about the grey:

While the Act is silent on invitee participation, the primary duty of the chairperson is to maintain and preserve order during the meeting. Horsley’s Meetings Procedure, Law and Practice 7th Edition notes with conditions that unless rules state otherwise, every person at the meeting (and entitled to be present) has a right to speak.

However, the chair should consider whether or not the presence of the invitee has the potential to make a material difference to the outcome of the meeting, and if so, is this difference in the best interests of all owners of the strata company.

Participation at meetings of the strata company should be controlled and managed by the chair of the meeting, including discussion points and time management.

General Meetings of the strata company are the forum for decision making, although debate may take place, it is not conversation or question time.

All Owners are given ample time to raise concerns and questions before the meeting due to the notice periods required by the STA.

So what is your answer:

I would suggest that all strata managers/strata companies ensure they have meeting rules and/or standing orders circulated with the notice of meeting and agenda, and the chair highlights these at the beginning of the meeting.

This will ensure the chair has the ability to control the meeting to the benefit of all participants.

Like many questions relating to strata, there is no one size fits all answer.

I would suggest that positive meeting participation by all attendees is welcomed to support harmonious and modern community living. However, discussion time should be limited to avoid unnecessary disruption and to ensure the meeting is on track to make required decisions.

ESM Strata E: mchurstain@esmstrata.com.au P: 08 9362 1166

This post appears in the February 2024 edition of The WA Strata Magazine.

Question: If a person holds a proxy and casts a vote on an issue, is their proxy vote automatically cast, or do they have to state they are also casting a proxy vote?

Answer: If a vote is taken on a show of hands, the person counting the votes should. ask the proxy holder whether they are also voting on the motion as the proxy holder for another lot.

This is an interesting question. However, if a vote is taken on a show of hands, the person counting the votes would obviously ask the proxy holder whether they are also voting on the motion as the proxy holder for another lot, in particular, if that would mean the proxy vote would be a deciding vote on a resolution.

As we do not know how large or small this scheme is, we recommend for large schemes that voting flags be issued for general meetings, which would then show how many votes an owner holds when it comes to voting. In a smaller scheme, if unsure, we suggest the owner is asked whether they are voting for their own lot as well as for the proxy owner.

Please also note Section 120 – Voting – of the Strata Titles Act 1985 as amended 2018:

120. Voting

The owner of each lot in a strata titles scheme is entitled to 1 vote on a proposed resolution of the strata company.

However, the owner of a lot is not entitled to cast the vote attached to the lot if –
1. the resolution is not required to be a unanimous resolution or a resolution without dissent and is not a resolution for postponing the expiry day for a leasehold scheme or a termination resolution; and
2. there is an outstanding amount recoverable under this Act owed to the strata company by the owner of the lot.

A proposed resolution can be put to the members of a strata company —
1. at a general meeting; or
2. outside of a general meeting.

A resolution can be proposed only by a member of the strata company who is entitled to vote on the resolution.

The vote attached to a lot can, and can only, be cast, if at the time it is cast, the person is entitled to cast the vote attached to the lot

The owner of a lot may cast the vote attached to the lot in person or by duly appointed proxy.

However, if a vote is taken at a general meeting at which both the owner of a lot and a proxy entitled to cast the vote attached to the lot are present and the owner is not a co-owner of the lot, the owner of the lot must cast the vote.

The voting system, whether it is electronic or by other means, must —
1. enable votes to be cast in a manner designed to protect the integrity of the voting system; and
2. comply with any requirements specified in the regulations.

This advice does not constitute legal advice and we recommend that the owner obtains their own legal advice to suit the circumstances.

Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 08 6559 7498

This post appears in Strata News #660.

Question: Our three building scheme has a percentage of holiday lets run by a hospitality company. The CEO of the company holds a large number of proxies and controls decisions. Lot owners feel there is a conflict of interest. What can we do?

Our complex consists of three buildings with a percentage of owner occupiers and holiday let properties.

A hospitality company with a management agreement based at the reception of our main building runs the holiday letting properties.

The CEO of this company is not a lot owner. They get elected every year to the council of owners and use proxies from holiday let owners to run the show from decision making to financials.

Every time the remaining lot owners try to vote for something, the CEO votes with the proxies, and we get absolutely nothing done that is in the interest of our complex. Every decision goes in favour of the hospitality business.

Can a person that isn’t a lot owner hold proxies and vote on behalf of owners?

Can the CEO be on the council of owners when he does not own a lot?

Are there any suggestions to stop the conflict of interest and corruption?

Answer: If you feel the individual is using proxies to steamroll decision making, try negotiating a resolution.

A lot owner can appoint the accommodation manager as their proxy. It is often part of the agreement between the lot owner and the accommodation manager that the proxy be given. I would, however, encourage owners to consider providing voting instruction on the appointment of proxy or renegotiate their proxy rights.

A non-proprietor cannot be elected to the council of owners. If a corporation is elected to the council, the corporation can appoint an individual who is not a lot proprietor to represent the corporation on the council.

If you feel the individual is using the proxies held to steamroll decision making and does so in a manner that is not in the best interests of the strata company, I would first encourage you to raise your concerns accordingly and try to negotiate a resolution. If this fails, it would be appropriate to seek an order via the State Administration Tribunal to invalidate the decision – an order that the motion was not passed.

Luke Downie Realmark E: ldownie@realmark.com.au P: 08 9328 0999

This post appears in Strata News #655.

Question: When the strata manager is acting as chairperson at the AGM, is it lawful for a lot owner to appoint them as a proxy?

Answer: The answer, in my opinion, is yes.

According to Section 124 (4) of the Strata Titles Act 1985 as amended 2018:

A proxy may be, but is not required to be, a member of the strata company.

According to the above, any natural person may be appointed as a proxy by an owner/ by owners of a lot, and sometimes, yes, it is the strata manager of the scheme.

The question rightly asked is whether a strata manager can act for another lot owner as the proxy and, at the same time, act as the chairperson at the AGM. The answer, in my opinion, is yes.

There are no legal restrictions on a strata manager acting as the appointed chairperson of the strata company at the AGM and at the same time acting as a proxy for a lot owner.

Caution must be exercised though in the following circumstances where a person as the proxy holder may not be able to vote – Section 12 of the Strata Titles Act 1984 as amended 2018:

If a member of a strata company who is an individual and sole owner of a lot is present at a general meeting of the strata company, the member must cast the vote for the lot personally rather than the proxy.

A person must not vote as a proxy of another person on a resolution relation to the provision of goods, amenity, or service 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, amenity or service.

Subsection (2) does not apply if —
1. notice of the proposed resolution included, if applicable, the particulars described in subsection (4); and
2. the instrument appointing the proxy expressly authorises the proxy to vote on the resolution and specifies whether the proxy is to vote for or against it.
If the resolution relates to the strata company making, varying or extending a strata management contract, the notice of the resolution must specify —
1. the name of the strata manager; and
2. when the proposed contract, or the contract as proposed to be varied or extended (as the case may require) is to start and end; and
3. each proposed variation, if applicable; and
4. the remuneration that is payable under the contract or the way in which the remuneration that is payable under the contract is to be calculated.

This advice does not constitute legal advice and we recommend that the owner obtains their own legal advice to suit the circumstances.

Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 08 6559 7498

This post appears in Strata News #642.

Question: If a developer has 4 unsold apartments, can he use 4 proxy votes? If the apartments are owned by a company, what happens?

Answer: If the developer is an owner of a lot, they can appoint a proxy. If a lot is owned by a corporation, the corporation may authorise any individual on the corporation’s behalf. This might be the developer.

Jordan Dinga Abode Strata E: abode@abodestrata.com.au P: 08 9368 2221

This post appears in Strata News #475.

Question: An owner of a lot has sent in a voting paper for motions noted on the Notice of the AGM. The AGM is being held face to face, and the owner has indicated his vote on the voting paper and dated and signed the voting paper. Is the Strata Company required to record this owner’s vote without a proxy?

Answer: The voting paper may not meet the requirements of the Act if the owner does not attend the meeting in person to cast their vote/s.

As per Section 124 of the Strata Titles Act 1985, an instrument appointing a proxy to cast a vote (often referred to as a ‘form of proxy’ or ‘proxy form’) must be in writing and executed (‘signed’) by the appointer (i.e. the proprietor/s of the lot).

The ‘voting paper’ referred to in the query does specifically appoint a proxy so it may not meet the requirements of Section 124 if the owner does not attend the meeting in person to cast their vote/s.

Section 125(1) may also apply whereby a member of a strata company who is an individual and sole owner of a lot who is present at a meeting must cast votes personally rather than by proxy.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9200 4200

This post appears in the October 2022 edition of The WA Strata Magazine.

Question: We have 7 members of council. At a recent AGM, only 3 members attended with proxies to make up quorum. I am concerned about the lack of governance with limited numbers making decisions.

At our AGM, it was voted to have 7 members of council. My understanding is that we then need a quorum of 4. At the last council meeting, only three council members were present in person but they all had proxies of the other members to make up a quorum. Can they do this?

My issue is that only 3 council members were present in person and making decisions. I am concerned about the lack of governance as we have a major project happening in our building.

Answer: Quorum can be achieved by representation (in person or by proxy) of four members of their Council, even if only three members physically attend.

Your correspondent is correct. Quorum can be achieved by representation (in person or by proxy) of four members of their Council, even if only three members physically attend, providing that at least one of the physical attendees holds a written proxy from another absent Council member.

In relation to governance, it should be noted that any Council decisions are still subject to restrictions that may have been defined under the provisions of the Strata Titles Act 1985 Schedule 1 By-law 4 (1), as well as all other parts of the Act.

The relevant sections of the Strata Titles Act 1985 that apply to this scenario are the rest of Schedule 1 By-law 4; and Schedule 1 By-law 8.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9440 6222

This post appears in the August 2022 edition of The WA Strata Magazine.

Question: What are the voting rules for a Resolution Without Dissent? How do we count the votes?

What are the voting rules for a Resolution Without Dissent? How do we count the votes?

Section 1230 (2)(b) Resolutions states in order for a resolution to be successful, “a resolution of a strata company is a resolution without dissent if — (b) no vote attached to a lot is cast against the resolution” (assuming the notice period requirement has been met).

Our strata council is proposing a resolution to add 2 new Governance by-laws and we are using the method of ‘voting outside of a general meeting’ allowed under Section 120 (3)(b) Voting. Our strata scheme has 15 owners, each with one unit/lot.

When we get the ballot papers back, if the count is as follows: 13 in favour and 2 blank ballot papers, how do we treat these blank forms? Are these abstention votes or accepted but neutral? Would the resolution be passed because no vote was cast against it?

Also, if one owner chooses not to submit voting papers, is this acceptable. Do all owners need to vote on a Resolution Without Dissent?

Answer: One no vote and the resolution is defeated.

The simplest explanation to this when voting for Resolution without Dissent you assume all owners will agree, but it Is not the yes vote that has the impact. In a Resolution without Dissent, the NO vote rules supreme. One no vote and the resolution is defeated.

In your hypothetical with a complex of 15 lots, you receive 13 yes votes and 2 returned blank ballot papers. In my opinion, if they don’t have a yes or a no or abstaining on them, they’re informal ballot papers and do contribute to the vote. In this case the RWD would pass as there is not a recorded no vote.

Finally, all owners do not have to vote with a Resolution Without Dissent (RWD). Silly if they don’t, but there is no statutory requirement that they have to. With a RWD the vote that has the impact is the no vote. One, and only one, negative vote and the motion is lost.

Brian Rulyancich StrataTAC E: strata@stratatac.com.au P: 0428 970 067

This post appears in the July 2021 edition of The WA Strata Magazine.

Question: Can a non-owner resident who holds a proxy be on the Council of owners for our Strata?

Answer: Only a lot proprietor can be elected to the Council of Owners.

Only a lot proprietor can be elected to the Council of Owners. If the proprietor of a lot is a corporation then the person authorised by that corporation may perform the duties of a member of council.

Non proprietors/ proxy holders etc are not eligible to be elected to the Council of Owners.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9440 6222

This post appears in Strata News #475.

Question: For a Council of Owners meeting, can COO members unable to attend the meeting hand proxy votes to the Strata Manager or must they be given to the Chairman?

At a recent Council of Owners meeting proxy votes from COO members unable to attend the meeting were declared invalid as they were given to the Strata Manager. I’ve been advised these proxy votes can can only be given to the Chairman. Is this correct?

Bylaw 8 of the Strata Act Governance bylaws sub section (3) + (4) refers to companies appointing someone to act on their behalf at the meeting, which in fact can be anyone but is silent in regard to individual owners.

Does an individual have the same right to nominate anyone or are they discriminated against in this case or does Section 124 voting by proxy apply?

Answer: Only another Lot owner can be a proxy for a Council Member.

Council Meetings – who is the Proxy ?

The Schedule 1 By-law 8 “Meetings of Council” answers this question.

(3) A member of a council may appoint an owner of a lot, or an individual authorised under the Strata Titles Act 1985 section 136 by a corporation which is an owner of a lot, to act in the member’s place as a member of the council at any meeting of the council.

The explanation being that only another Lot owner can be a proxy for a Council Member.

The proxy for Council Members cannot be the Strata Manager or anyone else who is not an owner within the strata scheme.

There is no requirement that the proxy has to be the Chairman of the Council but another owner can be appointed as a proxy.

A Corporation doesn’t have a physical presence and under section 136 the company is allowed to appoint anyone they choose to represent them.

The Act only permits another owner to represent an owner by Proxy at a Council Meeting.

The Council of Owners is just that, a Council made up from the Owners in the strata scheme.

These requirements are different to a Proxy required for a General Meeting. Section 124 that you refer to deals with Proxies for a General Meeting.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in the March 2021 edition of The WA Strata Magazine.

Question: Can a member of the strata council use a proxy vote to elect themselves on the strata council?

Can a member of the strata council use a proxy vote to elect themselves on the strata council? Is this classed as a service to the strata company as listed in Section 125 (2): Disqualification from voting as proxy?

Answer: I think you have to look at the intention of the proxy document. Did the proxy form actually specify that the person giving the proxy said ‘I want to nominate you to be on the council’?

I think you have to look at the intention of the proxy document.

Did the proxy form actually specify that the person giving the proxy specifically said I want to nominate you to be on the council? Then the person using the proxy would be following what the proxy had directed them to do. If there was no specification, I would perceive there would be a conflict of interest if the person used that proxy to their own advantage to elect themselves.

I’m not a lawyer, so you might need to get a legal definition on that, but I think that if it’s an open proxy, then the person can use it as they see fit. But, if it’s a directed proxy, then it’s definitely certain that the person giving the proxy wanted to be the nominated candidate for the counsel.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #448.

Question: Can you prove undirected proxy farming? We’ve seen proxy blocks being used in favour of an individual or to support the position of individuals on certain issues by using proxies to block motions.

Answer: There are no restriction on the number of proxies that a person can collect from owners.

In New South Wales they have legislation about proxy farming and voting and a maximum number of votes that can be held by any one person voting.

In the WA Legislation, there is a particular obscure section in this act that says about the number of votes anyone can hold, but there’s nothing that says what the number is. So the short answer is there are no restriction on the number of proxies that a person can collect from owners.

If you have a problem with that, then you need to try and gain the sway of the majority or the minority that aren’t voting and canvas for the proxy yourself. You just have to play the same game the opposition is playing. It’s a lot of politics. You watch parliament, you watch the news, you see the politicians? Try and get the votes for passing things. It’s the same thing on a smaller scale.

It always boils down to the numbers. Whoever has got the numbers will win, provided they haven’t been unfair, oppressive, unreasonable and discriminatory. That’s one of the guidelines in Section 119. There are requirements that the strata company has to have an objective and implementing processes and achieving outcomes, but they can’t be unfairly prejudicial or discriminatory against a person or oppressive or unreasonable. In subsection 2 of 119, must be aware that ‘a resolution or other conduct may be overturned for failure to meet that objective despite the fact that it reflects the will of the majority of members of the strata company as expressed through the exercise of their voting powers’.

You might have the mass numbers to vote and win by a majority, but if it could be demonstrated that it’s unfair or unreasonable, oppressive or discriminatory, then it could be overturned if someone went to the tribunal to push the point that they’ve been unfairly dealt with.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #433.

Question: An owner is regularly away. Can their appointed proxy come to meetings even when the lot owner is present?

We have a small strata of 7 units, which is self managed.

One lot owner is sometimes away or ill and regularly unable to come to meetings.

He has appointed a near relative as a proxy. Is it within the rules that the proxy continues to come to the meetings even if the lot owner is present?

Answer: Establish if the proxy is for a specific meeting or an enduring proxy.

Please note: this response was provided prior to the proclamation of the new strata title amendments.

Firstly you should establish if the proxy is for a specific meeting or an enduring proxy (for all meetings).

As for attendance at meetings, it is up to the owner to advise the meeting who will be the representative for their lot ( i.e. either the owner themselves or the proxy). Once this is determined then the person nominated as the representative is the only person who has the authority to vote. The other person is an observer.

Andrew Chambers Chambers Franklyn Strata Management P: 08 9440 6222 E: andrew@chambersfranklyn.com.au

This post appears in Strata News #336.

Question: Our Council of Owners held and used 140 proxy votes between them at the AGM to vote each other in on the council. This complex has 200 units as a consequence they vote on what they want meaning others don’t stand a chance.

Our Council of Owners held and used 140 proxy votes between them at the AGM to vote each other in on the council. This complex has 200 units as a consequence they vote on what they want meaning others don’t stand a chance.

For example, rather than getting the street lights fixed they replaced them with solar lights. Unfortunately, these solar lights lose their luminosity by about 3-4 in the morning, leaving the place in complete darkness. Due to this decision, we have been dealing with security issues such as robberies from vehicles and apartments.

Answer: There is nothing in the Strata Titles Act that prevents a proxy holder from voting for themselves.

Please note: this response was provided prior to the proclamation of the new strata title amendments.

A proxy holder can use the proxy in any way they see fit unless the proxy specifically states how they should vote. There is nothing in the Strata Titles Act that prevents a proxy holder from voting for themselves.

If owners do not agree then they should express their concerns in writing to the Council of Owners and also consider nominating for the council and seek support from other owners.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9440 6222

This post appears in Strata News #319.

Question: Can you please tell me if the new WA strata laws are going to limit the number of proxy votes that can be harvested by one person?

Question: Is there a limit to the number of proxies held by one person at a General Meeting?

Answer: There is no limit to how many proxies one person may hold.

Please note: this response was provided prior to the proclamation of the new strata title amendments.

We’ve recently received a few questions in about proxy harvesting and how many proxy votes one person can hold.

Under the present legislation there is no limit to how many proxies one person may hold, further, it appears that in the new legislation this will not change.

The only mention of this in the new legislation is as per section 124 (5) which states:

The regulations may impose limitations on a strata manager being appointed as a proxy, including limitations as to the number of lot owners or unit entitlements of lots for which a strata manager may be appointed as a proxy.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9440 6222

This post appears in Strata News #286.

Question: Does an invited guest of a Lot Owner have the right to comment on Special Business issues? They were not given proxy voting rights according to the AGM Minutes.

Can you please advise whether an invited guest of a Lot Owner has the right to speak/comment on Special Business issues? They were not given proxy voting rights according to the AGM Minutes.

Also, can a Lot Owner enter the AGM midway after the meeting has commenced given they had not submitted a proxy for the said meeting? Not only did they disrupt the meeting but then proceeded to have a say on a matter that was of particular concern to them, asking for it to be documented in the Minutes and then exited before Close of meeting.

Answer: Strata Companies are by nature private meetings and are only open to owners or there nominated proxies.

Please note: this response was provided prior to the proclamation of the new strata title amendments.

Strata Companies are by nature private meetings and are only open to owners or there nominated proxies. Anyone else who attends must be invited with the permission of the Chair or the meeting. Anyone who is present by invitation is unable to participate in the business of the meeting unless they have the permission of the meeting.

A lot owner can attend at any time and would only require a proxy if the property is registered in joint names or a company. It would, however, be common courtesy to attend on time, once again it would be up to the Chair to regulate the meeting proceedings and allow those present to speak on motions. An owner can also leave the meeting at anytime.

Andrew Chambers Chambers Franklyn Strata Management P: 08 9440 6222 E: andrew@chambersfranklyn.com.au

This post appears in Strata News #277.

Question: What requirements would need to be satisfied for a valid proxy form during the proxy voting process in Western Australia?

Could you clarify whether or not a proxy form for proxy voting is valid in Western Australian if:

the appointment refers to “a representative of ???” rather than a natural person.
the proprietor is a not a natural person (ie company or trust or ?) but not sealed or stamped
a proxy form is completed by a person who refers to having an enduring power of attorney

Further if any of the above are allowed, what additional requirements would need to be satisfied to validify the proxy voting process?

Answer: It is permitted for a proxy form to be signed under an Enduring Power of Attorney (EPA).

Please note: this response was provided prior to the proclamation of the new strata title amendments.

The proxy should state the name of the person (I recall many years ago the old Strata Titles Referee made a proxy invalid as it had a “representative of” rather than a name).
The use of common seals is rare these days. Usually, if it is executed by the company officeholders, that should be sufficient.
If a proxy is signed under an Enduring Power of Attorney (EPA) then this is permitted under Schedule 1 by law 14 (4). The meeting chair may request to see this to confirm.

Andrew Chambers Chambers Franklyn Strata Management E: andrew@chambersfranklyn.com.au P: 08 9440 6222

This post appears in Strata News #245.

Have a question about proxy voting or something to add to the article? Leave a comment below.

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Please note that the above should not be constituted as legal advice, rather my own personal opinion. If in doubt then you should seek legal advice.

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