When to rule a motion out of order
Wednesday June 27th, 2018
All Bodies Corporate must hold general meetings (except specified two lot schemes). On the agenda for these meetings are motions submitted by either the Committee or lot owners. Unfortunately, sometimes a motion should never be voted on by the Body Corporate because it is flawed in a manner that makes it “out of order”. Such flaws include if the motion conflicts with the Body Corporate and Community Management Act, the relevant regulation module or the by-laws of the Body Corporate.
If the motion contains such a flaw, the person chairing the meeting must rule it out of order. Making decisions about what should be deemed out of order requires knowledge of the relevant legislation. Understanding the rights of the lot owners (e.g., owners of a unit/apartment/property), and the obligations of the chairman can be difficult. In addition, it is important not to show bias or prejudice when making the decisions. Therefore, it is important to adopt a procedure, keeping the relevant legislation in mind and know the law while remaining neutral on decisions.
All lot owners are in a position to submit motions to be placed on the agenda for general meeting. Unfortunately some lot owners have agendas of their own that will not sit comfortably with other lot owners’ interests, or are quite simply against the legislation.
For example, it is against the Act to discriminate against certain occupiers. A lot owner may submit a motion to restrict a certain class of occupier, such as renters, from using the facilities of the scheme, such as the tennis courts or swimming pool. This clearly discriminates against renters and this motion must be ruled out of order. This particular situation is a fairly clear cut example of what must be ruled out of order. Sometimes the distinction is nowhere near as easy, and a comprehensive knowledge of the Act and associated regulations (together with other relevant legislation) is needed to determine if a motion is out of order. As the Chairman must also give reasons for ruling the motion out of order, the process can become a little daunting for the average committee/chairman.
Add to this the fact that a motion may be amended “from the floor”, (that is, at the actual general meeting) and chairing a meeting when the agenda contains a dubious motion can quickly become quite a cumbersome obligation for a chairman.
If your body corporate ever experiences this type of situation please be aware that due to the complexity of the issues that arise, your body corporate should seek experienced legal advice.
This article was contributed by Jane Macdonnell, McColm Matsinger Lawyers.