Getting a quorum of members together is hard for associations whose members are spread across a province or the country. Sections 68 and 69 offer a way to decide on paper, at the cost of a higher majority and a filing.
“A resolution in writing signed or assented to by or on behalf of members who together hold not less than 75% of the membership votes entitled to be cast on that resolution at a meeting of members is as valid as if it had been passed at a meeting of those members.”
The threshold: 75 per cent of all votes
The percentage is of the votes entitled to be cast, not of votes actually cast. At a meeting a special resolution needs 75 per cent of those voting, so twenty members voting fifteen to five carries it even if the association has two hundred members. A written resolution needs the assent of members holding 75 per cent of all two hundred votes. Where the rules require a greater majority than 75 per cent for a matter, the written resolution needs that greater majority (section 68(2)). The higher bar is the price of dispensing with a meeting at which the minority could argue its case.
What a written resolution can decide
Anything a meeting could decide: ordinary matters such as appointing a committee member, and special matters such as amending the rules, changing the name, approving a major transaction or authorising committee pay. Because the 75 per cent threshold equals or exceeds the special resolution threshold, a written resolution under section 68 satisfies any requirement of the Associations Incorporation Act 2023 for a special resolution. Section 48 confirms that action approved “by special resolution or written resolution in lieu of a meeting” exposes no member to liability as a committee or shadow committee member.
Form and procedure
Section 69(1) provides that the resolution “may consist of one or more documents in similar form (including letters, telegrams, cables, facsimiles, telex messages, electronic mail, or other similar means of communication) each signed or assented to, by or on behalf of one or more of the members”. A circulated resolution with each member’s signed page, or an email chain in which each member replies “I assent”, satisfies the section. Section 69(2) provides that the resolution “may be made without any prior notice being given to members”: the 21-day notice for special resolutions does not apply. “Assented to” is wider than “signed”, so a clear electronic assent counts, and “on behalf of” allows an authorised agent to assent for a member. The date the resolution is passed is the date the 75 per cent is reached.
Lodging with the Registrar, and effect
Section 69(3) requires a copy of the resolution to be lodged with the Registrar in the prescribed form with the prescribed fee within 20 days after it is passed, and provides that the resolution “must be registered by the Registrar and, until registered, does not take effect”. Failure by the committee is an offence by every committee member, punishable by a fine of up to K2,500 or two months (section 69(4)). This is the same regime as for special resolutions under section 64(5); see special resolutions. Note that the Act requires every written resolution to be lodged, including one on a matter that at a meeting would have needed only an ordinary resolution and no filing.
Records
The written resolution and the assents are “resolutions of members” within section 84(1)(f) and must be kept for seven years and be open to inspection. The association should keep the original signed pages or the email chain, a schedule showing each assenting member and the votes held, and the Registrar’s confirmation of registration.
When a meeting is still the better course
- Where the association cannot reach 75 per cent of all votes, a meeting at which 75 per cent of those voting suffices is easier.
- Where the matter is contentious, a decision made without notice to the minority invites a challenge under section 52 on the ground that the rules’ own consultation requirements were bypassed; section 69(2) removes the statutory notice, not any obligation the rules impose.
- The annual meeting itself cannot be replaced by a written resolution; section 66 requires it to be held unless all members agree or, for a member benefit association, the rules dispense with it.
- The election of committee members by secret ballot, where the rules require it, is not achievable on paper.
Head it with the association’s name, registration number and the words “Resolution in writing of members under section 68 of the Associations Incorporation Act 2023”; set out the resolution in full; provide a signature block for each member with name, membership number and date; and state that it takes effect on registration by the Registrar. Lodge it within 20 days.
Sources
- Associations Incorporation Act 2023 — ss 48, 52, 64, 66, 68, 69, 84(1)(f)
Before relying on anything here, read the current text of the Associations Incorporation Act 2023 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.