Bottoms v Yorkeys Knob Boating Club Inc

In this matter, the Court was required to determine whether the rules of association of the respondent club permitted attendance and voting by proxy at a special general meeting of the association convened to determine a member’s appeal against a decision to terminate his membership. Justice Henry held that attendance and voting by proxy was permitted, as the general provisions relating to special general meetings were not contradicted or excluded.

Henry J

5 February 2021 (delivered ex tempore)

The respondent club decided to terminate the membership of one of its members, Mr Brown. Mr Brown appealed against that decision pursuant to r 9(2) of the respondent’s rules of association (“the rules”). Rule 9(2) provided for such an appeal to be determined at a special general meeting where both the member and the management committee would have the opportunity to present their cases. Rule 21(c) of the rules required the secretary of the respondent to convene a special general meeting on being given notice of intention to bring such an appeal. Furthermore, r 24 of the rules permitted a member to attend and vote by proxy at a general meeting of the association.

The management committee decided not to permit proxy voting at the special general meeting. The applicant challenged this decision. The management committee made this decision on the basis that r 9(2) “contemplates the votes should be by members present at [the general meeting] and also because the interpretation requiring presence is consistent with providing the opportunity for the protagonists to present their cases”.

Justice Henry rejected the management committee’s primary argument, and held that r 24 applied to a meeting called to determine an appeal like that in the present case. There was “nothing in rule 9(2) which purports to alter the effect of rule 24 as it relates to voting by proxy in general meeting”.

As to the management committee’s secondary argument – that to permit proxies would undermine the right to be heard prescribed in r 9(2) – his Honour did not consider that permitting proxies would so erode that right so as to “exclude the right as illusory. Accordingly, Henry J held that one could not conclude that “rule 9(2) should be interpreted as providing by inference, contrary to rule 24, that proxy votes cannot be cast by those present at the meeting”.

His Honour emphasised that:

“ … it needs to be understood that unless the operation of the rules relating to special general meetings are contradicted or excluded, as the case may be, even if by inference by some other provision in the rules, then they govern the procedure for the forthcoming special general meeting.”

In the result, it was ordered that the provisions relating to proxy voting in r 24 of the rules applied and that the respondent was to pay the applicant’s costs on the standard basis, but limited to counsel’s costs and the filing fee.

S Walpole