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Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Re PROXIES: The Committee of our Residents' Association for

Resolved Question:

Re PROXIES: The Committee of our Residents' Association for 24 cottages for over 55s (average age 85ish) is in deadlock with the Hon Secretary who will not accept legitimate majority votes in meetings (6-1), will not amend Minutes to reflect the view of the other 6 members, does not accept the Vote of No Confidence taken in Committee, actions her own contradictory views with the members and refuses to step down and advocate her personal views from the floor.
(The Constitution is virtually useless and almost contradictory in places.)
We have been forced to call an EGM to 1. Add a clause to the Constitution to be able to dismiss a Committee member and 2. For her to step down as Hon Secretary and from Committee.
She has got four ladies** (newer arrival residents, all elderly) to sign PROXY FORMS.
BEFORE any Proposed Resolutions were made public!
-The First Proposed Resolution (adding a clause) was made public the day after she had her ‘Tea Party’ for the four ladies.
-The Second Proposed Resolution will not be made public until next Monday, at the earliest.
Is there anything we can do? Are her Proxies valid?
Her son is a Solicitor, he guides her and appears to encourage her. Some time ago on a different matter the chairman indicated to her that canvassing residents was not appropriate and then she was warned “of the danger of libel if she was inferring gerrymandering”!
**One has already expressed her confusion as to what it is all about and why...
Others are too scared of her to allow their names to be used in reporting/discussing her 'bullying'.
What is our Position? Is there anything we can do?
C. F. Dewar Durie
Hon Treasurer
Submitted: 1 year ago.
Category: Law
Expert:  Joshua replied 1 year ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. May I clarify if the association is a limited company structure or just a constituted association please?
Customer: replied 1 year ago.

Just a constituted association

Expert:  Joshua replied 1 year ago.
Thank you. Would I be correct to assume that constitution provides for majority voting on the matters of appointing or removing officials please or is it silent on these matters?If it is silent does the constitution provide for the majority required to amend the constitution?
Customer: replied 1 year ago.

Committee officers "individually elected by not less than 51% of the members of the Association or their proxies present at the AGM.."

It is silent on removal of anyone

For Alteration of Rules: "...may be varied or added to by resolution of the Association in general meeting, passed by a majority of at least two-thirds of the members present or by proxy...”

Expert:  Joshua replied 1 year ago.
Thank you. Can you muster a 2/3s majority at a meeting do you think?
Customer: replied 1 year ago.

We thought so, but a very close run thing esp with her getting new people (and will probably try for more) to sign proxies when they - at the time - had no idea what the Resolutions were that are to be proposed -it seems very incorrect.

And as her son is solicitor expect the proxies are just 'general'

Some members will probably abstain/not turn up as they no longer like coming to the meetings as she is so combative...

Expert:  Joshua replied 1 year ago.
Thank you. There would seem to be two priorities from what you say. The first is to look at nominating a new secretary - normally nominations must be received a few days (normally three) before an AGM (according to the constitution) unless the committee decides to accept nominations at the AGM itself. Then at the next AGM (or special meeting called in accordance with the constitution) hold a vote to elect a new secretary which will require a 51 majority according to the constitution. Following the vote the secretary will be replaced effective immediately - it is irrelevant whether the existing secretary refuses to accept the vote or not because following the vote she is removed from office being replaced with the newly elected secretary who will record the result.Next would be to look at perfecting the constitution. Ideally you would ensure the constitution is replaced with a fully working constitution if your present constitution is poorly drafted. This is not essential but it will help to ensure that future issues are covered by a properly prepared constitutional document. A solicitor can provide a draft constitution for you or if you prefer I can provide a draft constituion you can circulate to agree for a modest additional fee. Obvously ou would need the above higher majority to achieve this so it may have to be placed on the back burner until after the secretary is replaced and her influence wanes, but it is something to keep under review for the future when it seems achievable.With regards ***** ***** the rules for this are again covered by the constitution. If the constitution is silent then a prixy can be given at any time prior to a vote. If it is not silent then the proxies must be given to the secretary a certain number of days before the vote - usually 3 days. If you can show that the proxies were given other than in accordance with the constitution rules they will be invalid.In a worst case scenario you would look to disolve the association and reconstitute a new one though this usually requires a 2/3s majority vote as well so it may not be the obvious solution.I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
Customer: replied 1 year ago.

Thank you. It is v. helpful, especially re: electing a new Secretary overriding the previous one (but we need her off the Committee too). We tried to have a new and better constitution - but she blocked it in Committee so it made no further progress.

Proxies - as Sec she is collecting them! - Albeit her own ones (we've not seen them). I understand from you that these ARE valid - even if not approved or seen by the Committee?

There is clause 4.9 "Any member entitled to vote may authorise in writing (such authority to be satisfactory to the Chairman) another member to vote on his/her behalf."

Can the Chairman, LEGALLY, declare the 'rogue' proxies invalid as (if) they are dated prior to any proposed resolutions being made public or does a general proxy stand anyway?. It would be awkward as Chairman is not neutral in this case, but could that be allowed?

Re dissolution - this we may have to do = the bully wins!.

Expert:  Joshua replied 1 year ago.
THe proxies will be valid providing it is clear that they are a proxy and they have been signed or otherwise evidence to have been authorised by the proxy giver. Obviously the person giving the proxy can revoke it at any time. The only way in which they would not be valid is if they are not given in accordance with the constitutional rules. She will have to present evidence of any proxies she claims to have in order for the proxy votes to be counted. According to the above clause, the chairman must be satisfied with any proxy vote in order that it can be counted so if he is not satisifed that one or more proxy is valid he could bar that proxy being counted.Regarding the committee - it will consist of designated officers chairman secretary treasurer etc as defined by the constitution. If she is no longer an officer because she is replaced as above she will de facto no longer be on the committee. She can of course still vote as a resident.Situations such as this are really a question of tactics. In my view the approach to take is one of removing her first as this requires a lower voting threshold, this will reduce her influence re proxies and so on. Following this you could look to some constituional change when you calculate there is sufficient support. I hope the above is helpful? Can I help you with anything else or has the above answered your questions satisfactorily? If you could drop me a quick message to let me know I'd be very grateful.
Customer: replied 1 year ago.

Thank you. All Noted.

So the fact that they gave her proxies - without knowing what the votes were to be for - means they are still valid ?

If that is so the chairman cannot disallow them can she?

If the same people sign 'our' proxy forms - on which they can 1.

Opt for the chairman to cast their vote. 2. Indicate how they want their vote cast for the two resolutions, would these, with a later date on them, naturally supercede = revoke the earlier ones?

Expert:  Joshua replied 1 year ago.
I am afraid they are. It would be for the individuals concerned to take issue with her if they felt she obtained those proxies in bad faith. Of course they can revoke them at any time. The chairman would run into difficulties if he tried to disallow them on the basis that the proxies were not obtained in good faith if otherwise on the face of it they were invalid. If you know who the people are concerned, there is nothing stopping you asking them if they would like to revoke their proxy. The secretary cannot disallow the proxies either in the same way though I assume she would not want to. If they sign new proxy forms they should also revoke their previous proxy - a further provision on the new proxy could be included to declare they revoke any previous proxy. The new would then replace the old.Have I been able to help you with all your questions on the above?
Customer: replied 1 year ago.

Yes. has helped. I will add the point about revoking all previous proxies to our forms... I don't hold out much hope that they will bother to sign another form BUT if they do it will help.

The chairman has alerted the onsite managers - under auspices: Duty of Care - and suggested they contact the families of the ladies and advise them that it is possible they may have signed something which at the time they did not have detail about... The managers can be seen to be neutral. We dare not be seen to try and influence members unless they come and ask us.

If the resolutions do not go through we will all resign. The members will know that we will do this when we advise them of the second proposed resolution a week before the EGM.

Thank you very much for your help, CDD

Expert:  Joshua replied 1 year ago.
I think that sound like a very fair and wise approach re the potentially impacted residents. I hope you manage to carry some resolutions to wrest influence away from the secretary.I am glad to have been of some assistance.Best wishes
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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