March 26, 2019
As Body Corporate Managers, we are often requested to provide procedural advice on common meeting administration matters, either prior to or when attending meetings. Many of the meeting procedures are specified in the legislation, which we are trained to navigate. However, there are some not so common scenarios such as when a motion is to be withdrawn at the Annual General Meeting (AGM), which the legislation does not specifically cover.
In these circumstance of the legislation being silent, we draw on our experience previously dealing with similar matters and how it may have played out when disputed. By providing Bodies Corporate with this experience, we are able to professionally guide their decisions on how best to deal with the scenario at hand.
In this article we delve into the options available to deal with a request we see from time to time to withdraw a motion once the AGM notice has been issued.
There are a myriad of reasons why either an owner or the Committee may wish to withdraw a motion they submitted to the AGM. The common reason we find motions wish to be withdrawn by Committees is that the factors that led to the original decision have changed. For owners who change their mind, it is usually due to the motion being invalid due to lack of information or specific action requested that could have been avoided if the Committee where consulted first. More on submitting owner motions can be read here.
As the matter of withdrawing motions at the AGM is not specified in the legislation, Common Law should prevail and a solicitor should provide advice on the specific provisions.
Under the Common Law, once a meeting notice and agenda has been issued, the motions included become “the property of the meeting”. This means that a motion can only be withdrawn when the majority of “voters” present at the meeting approve withdrawal of the motion.
The procedure would be for the Chairperson if asked by the Committee or owner who submitted the motion requesting that it be withdrawn, put forward a procedural motion to the voters present, seeking a vote on withdrawing the particular motion.
This matter has also been disputed via the Office of the Commissioner for Community Management and the following statements made by Adjudicators when making orders in favour of the above view as follows:
Village Green – “I am of the view that a motion which has been listed on the notice of a general meeting may only be “withdrawn” if those in the room vote to withdraw it. Others have voted on the issue, and it is in the public domain. It is normal meeting procedure that a motion may only be withdrawn if the majority of those present consent, even though such a procedure is not set out in the legislation”.
The problem we face as Body Corporate Managers when advising of the above order, is that there is also a contrary order that allows the submitter of the motion to withdraw it without the procedural motion. This contrary view essentially makes it a foregone conclusion that the motion will be withdrawn before the meeting even starts. That particular order and statement by the Adjudicator is as follows:
Festival Towers - “It has previously been decided that it would be illogical and impractical to refuse to allow the submitter of a motion to withdraw that motion prior to the vote being cast”.
The solicitor views we have read essentially advise that as the legislation does not specify how to deal with the issue, common law prevails regardless of Adjudicator past decisions. A legal opinion should be sought on this matter though, particularly when a dispute is likely due to the quantum of the matter being decided.
As there are Adjudicator’s decisions stating a motion may be withdrawn by the submitter and the decision has not been appealed, this view cannot be considered wrong, at this stage.
Provided the Committee or Chairperson is acting reasonably in their decision to adopt either method when handle a request to withdraw a motion, and take into account the specifics of why the motion is requested to be withdrawn, a dispute should be avoided.