It is not uncommon for us to be asked to consider the legalities of a motion being withdrawn before it is voted on.
Not unsurprisingly, there is more than one school of thought (as there always seems to be in BoCo world).
The scenario is this:
- A motion is included by an owner in a general meeting agenda;
- The meeting agenda which includes the motion is sent to the owners; and
- For whatever reason, before the owners vote on the motion, the submitter (of the motion) wants to withdraw the motion from the agenda.
Rather unhelpfully, the Regulation Modules and the Act are silent on the issue of whether a submitted motion on an agenda may be withdrawn.
Where the Regulation Module/Act prove unhelpful, recourse must be had to the Common Law or to a relevant statutory provision in other legislation.
In the fact scenario discussed here, there is no statutory provision in other legislation relevant.
So – what does the common law say?
Essentially, under the common law, once a meeting agenda has been distributed the motions included in that agenda are said to become “the property of the meeting”.
As such, the school of thought is that a motion can only then be withdrawn when the majority of those present at the meeting consent to the motion’s withdrawal.
In essence, the Chair of the meeting would put a procedural motion to those present asking them to vote on withdrawing the motion.
What have the Adjudicators’ said?
Some have said – “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”.
Unfortunately, some have also said – “I am of the view that a motion which has been listed on the notice of a general meeting may only be “withdrawn” if those in the room vote to withdraw it.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 It is normal meeting procedure that a motion may only be withdrawn if the majority of those present consent, even though such a procedure is not set out in the legislation”.
So, the Adjudicators’ positions differ from Adjudicator to Adjudicator.
Which position then is to be preferred?
Legally, given the legislation is silent on the issue then we think the common law position trumps the Adjudicators’ views.
Practically though, given there are Adjudicator’s decisions stating a motion may be withdrawn by its submitter (and until the question is settled by an appeal of an Adjudicator’s order), we would recommend a Body Corporate adopt that view, if only because it provides simplicity for the Body Corporate in that the submitter of the motion can simply write to the Secretary requesting the motion be withdrawn or indeed ask the Chair of the meeting to withdraw the motion, with the effect it not be voted on at the meeting and any postal votes received not be counted.
Of course, a motion cannot be “withdrawn” after it has been voted on.
As always, the Active team is here to assist with any body corporate legal issues you may have.
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