OMC proxy forms: the legal wording and the 48-hour rule

Who can be a proxy

Any member entitled to attend and vote may appoint another person, whether a member or not, to attend and vote instead of them CA 2014 s.183(1). The proxy has the same right as the member to speak, and to vote on a show of hands and on a poll s.183(2).

Unless the constitution says otherwise, a member can appoint only one proxy for a given meeting s.183(3). For a company limited by guarantee (CLG), the constitution can also limit the right to appoint a proxy in the first place s.1205.

The statutory form

The Act sets out the form a proxy appointment must follow, “or a form as near to it as circumstances permit” CA 2014 s.184. In plain terms, it says:

• the name of the OMC;
• the member’s name and address;
• the proxy’s name and address, and an alternative proxy if the first cannot attend;
• that the proxy may attend, speak, vote and demand or join in demanding a poll;
• which meeting it covers (annual or extraordinary), its date, and any adjournment;
• how the proxy is to vote on each resolution.

Two practical additions help the board on the day: the member’s unit number, and a For / Against / Vote withheld column for each resolution.

The 48-hour rule

The signed form must be deposited at the registered office, or at another place in the State named in the notice of the meeting, no later than 48 hours before the meeting starts CA 2014 s.183(5)–(6). The constitution can shorten that period, but not lengthen it.

A form that arrives late, or at the wrong place, is not valid s.183(8). For an AGM starting at 7pm on a Thursday, the cut-off is 7pm on the Tuesday.

Signing

The form must be in writing and signed by the member, or by an attorney authorised in writing CA 2014 s.183(4). Where the member is a company, which is common for units owned by investors, it is signed under the company’s seal or by an officer or attorney duly authorised in writing.

Returning it by email

A member does not have to post or hand in the form. The Act allows it to be deposited by sending it to the company by electronic means CA 2014 s.183(7). Say in the notice which email address or online form to use.

The trap for boards

If the OMC pays to send some members, but not all, an invitation to appoint a particular person as their proxy, any officer who knowingly allows it commits an offence CA 2014 s.183(11). Sending such a form to a member who asks for it in writing is fine, provided it is available on request to every member s.183(12).

The safe practice is simple: send every member the same form. If you suggest the chairperson as a default proxy, suggest it to everyone in the same way.

If a member dies or changes their mind

A vote cast under a proxy remains valid even if the member has died or revoked the proxy, unless written notice of that reached the registered office before the meeting began CA 2014 s.183(9)–(10).

When the constitution bans proxies

Some CLG constitutions do not allow proxies at all. In that case, the notice of the meeting leaves out the usual statement about appointing a proxy CA 2014 s.1204A, and no proxy form is sent.