The Law Handbook 2024

602 Section 6: Houses, communities and the road Minutes Although there is a requirement to keep minutes of general meetings (s 81) and committee meetings (s 114), the minutes need not be signed, confirmed or distributed to members of the owners corporation. Only minutes that contain interim decisions must be sent to members within 14 days (ss 78(4)). However, it is good practice to provide minutes of all general meetings to all members. A notice of the next AGM must include minutes of the last AGM. Voting The chairperson may only have a second vote or casting vote if the voting is equal and the chairperson is a lot owner of the owners corporation or votes as a proxy for a lot owner (s 93). A casting vote cannot be used when a resolution is made by ballot. A member whose fees or other amounts owing to the owners corporation are in arrears is not entitled to vote, except when a special or unanimous resolution is required (s 94). However, an unfinancial lot owner may attend a meeting and their presence is counted when determining a quorum (also see ‘Resolutions’, above). Except in the case of a cash payment, an amount is taken to be paid in full if it is paid not less than four business days before the vote in question (s 94(3)). Section 78 permits a general meeting to proceed without a quorum. In such event, all resolutions remain interim decisions unless challenged within 28 days by members holding at least 25 per cent of the total units of entitlement. An interim decision cannot be acted on for 29 days after it is made. Corporate lot owners A lot that is owned by a company may be represented at an owners corporation meeting by a proxy. A proxy is not required if the company’s representative at the meeting is an officer of the company (e.g. a director, secretary, or chief executive officer). Power of attorney A person is not entitled to exercise, under a power of attorney, the power of a lot owner to vote if the person has that power in respect of another lot owner under another power of attorney (s 88(2)). This section counters unjust provisions in contracts of sale where developers hold control of the owners corporation by power of attorney, in some cases up to five years. This provision does not apply if the lot owners for whom the person is to exercise a vote are members of that person’s family (s 88(3)). Interim special resolutions Section 97 provides for interim special resolutions. Where the votes in favour of a special resolution are more than 50 per cent of the total votes available, and the vote against is not more than 25 per cent of those votes, the resolution passes as an interim special resolution and this vote is treated in the same manner as other interim resolutions. Committees An owners corporation affecting 10 or more lots must elect a committee at each AGM (s 100) (see ‘Meetings and decisions’, above). A committee must have at least three and not more than seven members (s 103(1)), unless the owners corporation resolves by ordinary resolution to have more than seven members but not more than 12 (s 103(1A)). Only one person from each lot may be elected to a committee (s 103(3)). A lot owner may authorise, in writing, a proxy (who is not necessarily a member) to represent that lot owner on the committee (s 89C(1)). A member of a committee may provide a proxy for a committee meeting only to another committeemember (s 89C(2)). In the absence of a quorum, the election of the new committee remains interim and the old committee continues to function for at least 29 days (s 78). A member may participate in a meeting in person or by telephone in accordance with the regulations (s 112(4)). Formerly, there was no provision for a third option, such as participation via proxy as provided in section 80 for a general meeting. The OC Act now allows participation by non-elected individuals who might not even be lot owners. That might not be satisfactory if the proxy is uninformed on matters to be decided. A committee member acting as a proxy (e.g. a corporate representative) is excluded from appointing another person (or power of attorney) to act on their behalf as a proxy cannot appoint another proxy (s 87(3)(c)). The granting of proxies undermines the implied trust and faith in chosen committee members. If a lot owner is in arrears for any amount of fees, the lot owner or proxy for the lot owner is not eligible to be elected as a member of the committee