Holding EC meeting without secretary

If you’re in NSW, the E/C Meeting can go ahead provided half of the elected members are in attendance (in your case that’s 3), and any members who cannot attend, irrespective of what position/s they may hold, may with the consent of E/C appoint another owner to act and vote in their place at the Meeting.

BUT….. as KWP correctly states, the matter that your E/C wants to consider can only be decided by way of a Special Resolution (SR) at a General Meeting of the Owners Corporation (O/C), where for that SR to pass ≥75% of those in attendance both personally and by proxy would need to vote in favour, with that percentage being determined from the sum units of entitlement (UOE) of those in favour and the aggregate UOE of the Plan.

If the SR was properly passed, your O/C must either create and register a Special By-Law covering the Owner’s exclusive use of the common property for their driveway, or grant them a “licence” to use the common property for that purpose; both should contain conditions such as one mentioned by KWP (post #2; last para) to take account of the real value (to the owner) of the common property that they’ve “acquired”.

@Colosus01 said:

Is there any law covering EC members allowing them to withhold a vote on this particular matter?

The chairman can declare a motion invalid as this one should be, as it requires a Special Resolution Bylaw (see posts below). An SBR can only be passed at a General Meeting and even then it requires a 75 percent vote in favour of those attending.

But even if the vote were valid, you would need the support of at least one other owner to stop it.  So why not ask that other owner to refuse to attend then the meeting will be inquorate?

@Colosus01 said:
I will take the advice from this thread on board but the EC meeting that was planned the SM has advised that owners are allowed to attend this EC but cannot vote. She has since told me it is against the law not to allow them to attend the EC meeting.

The strata manager is right.  Owners are entitled to attend EC meetings but they can’t vote and can’t even address the meeting unless they are invited to do so by the EC.

That doesn’t mean, however, that the EC meeting can’t go ahead if everyone who is entitled to attend isn’t able to get there.

I have to admit, I am becoming confused about what it is that you actually want.  Do you wish the meeting to not go ahead so that specific item can’t be discussed in the absence of two EC members?

If that is the case, the absent EC members can get another EC member (or anyone, for that matter) to act as their proxy (subject to approval at the meeting by the rest of the EC). If the others on the EC refuse to allow the proxies, the absent members’ supporters could leave the meeting, rendering it inquorate so that no decisions can be taken.

But just to be clear, what is the outcome you require, and how many people in the EC do you have onside and does that represent a majority in the EC?

NB:  The original thread was killed due to my pressing the wrong button when I was tidying up mis-formatted posts. It is now back in its entirety.

@kiwipaul said:
This is correct only the EC members can vote at an EC meeting but owners can participate as observers and can express their point of view.

In NSW, non-EC members are allowed to attend EC meetings but they can only speak if they are allowed to do so by the vote of a majority of the EC.  This is partly to avoid EC meetings being hijacked by owners who are prepared to become abusive and intrusive to get their points across.

Now I’m confused too!

Your original post stated that an Executive Committee (E/C) meeting had been convened, that three (3) of the E/C Members including the Chair could attend, and that the two (2) remaining members being the Secretary and yourself could not attend.

Your last post (#10) reveals that your main concern is that the meeting will be hijacked by other Owners, but you’ve been advised (correctly) that these Owners have neither a vote on the item under discussion nor the right to speak unless invited to do so, and you’ve also been advised (again correctly) that in any case the item under discussion cannot be decided by the E/C.

The Strata Manager may have the role of Secretary delegated to them under the terms of their Agency Agreement with the Owners Corporation, but under the provisions of Sect 29(2) of the NSW Strata Schemes Management Act (SCMA) the Secretary can continue to exercise his/her functions, and under Sect 22(f) of the SCMA one of those (functions) is to convene meetings of the E/C and General Meetings of the O/C.

So as I get the feeling that you don’t want the Meeting to go ahead, and assuming that the E/C Secretary feels likewise, stopping the Meeting is best achieved by that person simply advising the Strata Manager in writing, with a copy to the Chair and other Members, that for a number of reasons, including that the item under discussion cannot be decided by the E/C, that they’re exercising their role under Sect 29(2) by instructing that Meeting is not to be held.

Note: Don’t provide the above instruction until a few days before the scheduled date for the E/C Meeting, as any two(2) E/C members can request the Secretary to convene another Meeting, and he/she then has only a little leeway in terms of time to prepare a new Agenda and to distribute that to Owners a minimum 72 hours before whatever Meeting date they’ve chosen and can attend.

@Colosus01 said:

As you have recommended the issue is now going to an OC vote despite in our EC meeting the secretary having the majority votes via proxy but the chairman deciding this is BS according to her and causing havoc.

How does the secretary have the majority of votes by proxy at an EC meeting? Are you saying that the secretary has proxy votes from other EC members who could not attend, which were allowed by a majority vote at the EC? That is the only way proxies count at an EC meeting. Proxy votes from other owners who are not EC members do not count at EC meetings.  

As kiwipaul and whale have advised the resident in question requires 75% of votes in favor by the OC to get what he wants but the strata manager has stated that is incorrect and its 75% of the votes received only. So in light of this which is actually correct?

Whale did not say that at all; he correctly wrote that the percentage required to pass a special resolution at a general meeting is more than 75 percent of those attending a General Meeting in person or by proxy and entitled to vote.

Let’s say you have a scheme of 100 lots.  60 of them either turn up at the meeting or send proxy votes.  But 20 of those attending or having sent proxies are behind with their levies.  That leaves only 40 entitled to vote and you would need only 31 of them to vote in favour to pass a special resolution. 

By the way, all special resolution votes have to be “poll” votes and they are determined by unit entitlements, so the number of owners required to vote in favour could be greater or less than the simple head count, depending on the UEs they hold.

In a complex of 23 had assumed the resident required 18 votes in favour.

See above: It depends how many attend the meeting and are entitled to vote at it. 

Lastly as this driveway services two townhouses but the expansion would only benefit one owner the SM has advised the information provided about registering  a Special By-Law covering the Owner’s exclusive use of the common property for their driveway, or granting them a “licence” to use the common property is incorrect. Is it safe to say that i am being mislead on her comments?

It’s impossible to judge without knowing the details of how exactly the change to a shared driveway benefits only one owner. Perhaps it makes it easier for one owner to access but at the same time saves common property from being damaged.  I would not consider that to be benefitting only one owner.  On the other hand, if common property were being given over to provide parking for an owner, that would be a different matter entirely. Your strata manager seems to have got things right so far so I would be tempted to accept their opinion.

STRATA SCHEMES MANAGEMENT ACT 1996 –

Source

https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/

STRATA SCHEMES MANAGEMENT ACT 1996

– As at 1 January 2014

– Act 138 of 1996

DICTIONARY

Part 1 – Definitions

” special resolution” means a resolution which is passed at a duly convened general meeting of an owners corporation and against which not more than one-quarter in value, ascertained in accordance with clause 18 (2) and (3) of Part 2 of Schedule 2, of votes is cast.