Voting at AGMs and EGMs

Do you mean the company is deregistered?

Someone must own the unit, either a person or a legal entity. If the company that owned it has been deregistered, it no longer exists. So you could assume that the unit has been transferred to another person or legal entity.

Add into the mix that under strata law, a proxy cannot have effect for more than 12 months or 2 consecutive AGMs, whichever is the greater. That is, a proxy has to be refreshed.

If the company went out of existence some time ago, then the proxy wasn’t valid for both reasons.

I would say that you can challenge the by-law as not being valid. 

No it doesn’t – if the company is deregistered it doesn’t exist, you can’t be a proxy or a nominee for something that doesn’t exist. 

To paraphrase Monty Python, the company is dead, deceased, it is no more.

So – who owns the unit? A non-existent company can’t own a property either.

If the by-law is already registered, the law will assume it was created in good faith until such times as it is challenged under the process available in the Act.

The ways to do that are through revoking the by-law at an general meeting or, more likely, given that the beneficiary is unlikely to agree, as required for changes to a common property rights by-law, by seeking orders under Sections 24 or 150 (below).

For a section 24 revocation, you would probably have to show that the by-law would not have passed were it not for the use of the invalid proxy vote.

For a section 150 order – probably a tougher call – you would have to show that the meeting was not entitled to pass the by-law or that the by-law was essentially  harsh or oppressive.

A simple challenge to the validity of the vote would have to have been made withing 28 days of the by-law being passed and even then you’d have to show that the invalid vote made a difference.

In short, NCAT is unlikely to revoke the by-law just because an invalid vote was used at the meeting. However, if the use of that vote made a significant difference, it might be worth challenging.

At this point, you might be well advised to have a chat with an experienced strata lawyer.

24 Order invalidating resolution of owners corporation
(1) The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of, or election held by, the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of this Act or the regulations have not been complied with in relation to the meeting.
(2) …
(3) The Tribunal may refuse to make an order under this section only if it considers:
(a) that the failure to comply with the provisions of this Act or the regulations, or of the Strata Schemes Development Act 2015, did not adversely affect any person, and
(b) that compliance with the provisions would not have resulted in a failure to pass the resolution or affected the result of the election.

150 Order invalidating by-law
(1) The Tribunal may, on the application of a person entitled to vote on the motion to make a by-law or the lessor of a leasehold strata scheme, make an order declaring a by-law to be invalid if the Tribunal considers that an owners corporation did not have the power to make the by-law or that the by-law is harsh, unconscionable or oppressive.
(2) The order, when recorded under section 246, has effect as if its terms were a by-law repealing the by-law declared invalid by the order (but subject to any relevant order made by a superior court).
(3) An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.

If the motion was carried and the by-law to be added then you’d probably need to revoke it.

We had an issue where a motion was carried at a agm (in the days when just a few turned up to vote). When it was later discovered it was full of nonsense it needed to come off the same way it went on – at another agm.

The next agm we had a motion and this detailed why it was not valid, not therefore enforceable and potentially put owners at risk of blowback/fix it at all owners cost. If you write the motion and tell your story through the explanatory note you can usually over come others lethargy if they think it might bite them down the track.

So, kill your current situation by a motion (if successfully voted in) then start again, with another motion (maybe/maybe not also at that agm – but do it when it’s good to go), or not.

That can be true, unless you need the time to get it right – in our case we would need a architect or similar outside expertise to find a way forward that makes sense of the prior mistakes in place and whether to leave these as is or modify these as a part of getting it correct going forward. Sometimes speed kills so disabling the rot to continue until you have the best way forward makes sense.