QLD: Q&A Body Corporate Voting Rules – What You Can and Can’t Do

What is the correct understanding of the VOCM voting process as outlined in section 69(2) of the BCCM Act, specifically regarding the definition of the ‘majority of all committee members entitled to vote’?

For a committee of four voting members, is the majority three (i.e., half of four plus one)? According to section 69(2), a motion would pass with at least three ‘yes’ votes or fail with at least two ‘no’ votes. Abstentions or non-votes aren’t factored in; only ‘yes’ and ‘no’ votes are considered.

Can you clarify the outcomes for the following scenarios with the correct understanding of the VOCM voting process?

Case 1:

Voting Committee Members: 4 Yes: 2 No: 0 Abstain: 1 Non-Vote: 1 Outcome: Pass or not?

Case 2:

Voting Committee Members: 4 Yes: 2 No: 0 Abstain: 0 Non-Vote: 2 Outcome: Pass or not?

Answer: In both cases and subject to s69(2) of the Standard Module (equivalent provisions elsewhere), the vote fails.

These types of matters can be heavily contested and need an adjudicator to finally determine, taking into account a range of factors. So, I want to clarify, I am not providing legal advice or in a position to provide definitive answers.

In that context, my views are that in both cases and subject to s69(2) of the Standard Module (equivalent provisions elsewhere), the vote fails.

Again, there may be several factors at play here which would at least give pause for thought on the above. For example, were members contacted at the correct email address for service? You’d be surprised how often one keystroke wrong in an email address causes drama.

My response is general information and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the October 2023 edition of The QLD Strata Magazine.

Question: Is the explanatory note meant to be emailed with the notice of the EGM? Can the committee delay sending the explanatory note out to owners?

Our committee have called an EGM. They sent out the paperwork, i.e. agenda, and voting paper but have not included the explanatory note. They advised that the explanatory note in relation to the circumstances surrounding the requirement for the EGM would be forwarded to all owners in the coming day or two.

The notice for EGM was emailed on 21 August 2023 but by the end of August 2023, we had not received the explanatory note.

Is the explanatory note meant to be emailed with the notice of the EGM? Can the committee delay sending the explanatory note out to owners?

Answer: The explanatory note should have be included with the motion when the notice is distributed – that’s the whole point.

The explanatory note should have been included with the motion when the notice was distributed – that’s the whole point.

It’s unfortunate that it was omitted, but if it was a genuine mistake, it may be sufficient to send it out afterwards with an apology and explanation.

Whether you consider this reasonable may depend on the import of the motion or whether you think the non-inclusion of the note will affect the way people vote.

It’s more concerning that the correction hasn’t been issued quickly. Perhaps you should contact the committee or body corporate manager to ask why.

Otherwise, you could seek an emergency adjudicator’s order if you felt the matter was serious enough. Alternatively, you could wait until the vote was held and could dispute the outcome if it didn’t go your way. A third option would be to remove the motion, but ask the body corporate to call a separate EGM to consider only your motion. This would be at the expense of the body corporate given that they made the error.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #663.

Question: I am requesting a motion at the AGM out of order based on conflict with the Act. For a four lot scheme, how many votes are needed to successfully overturn the decision?

What is the voting on a procedural motion? I am requesting a motion at the AGM out of order based on conflict with the Act.

When the chairperson says to voters, “Do you want this decision overturned”, what is the number of votes needed to successfully overturn the decision? There are four lots in the scheme.

Answer: The overturning of an out of order ruling occurs by ordinary resolution. An ordinary resolution means more ‘yes’ than ‘no’ votes.

Section 98(3) of the Standard Module (equivalent provisions of other modules) provides that the overturning of an out of order ruling occurs by ordinary resolution. An ordinary resolution means more ‘yes’ than ‘no’ votes.

In your case, if all 4 owners are entitled to vote and attend the AGM, based on the above you may likely need 3 ‘yes’ notes.

There are, of course, many variables in attending and voting for an AGM so this is not intended to be definitive. It is general information and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #654.

Question: Our caretaker/letting agent is asking owners to not read the body corporate committee’s monthly newsletter nor to vote with the committee. How can we deal with this situation?

Our caretaker/letting agent is asking all owners under their letting agency to not read the body corporate committee’s monthly newsletter nor to vote with the committee.

While I appreciate that the caretaker is free to communicate with owners, the content of most of the communication is to direct owners on how to vote. This makes me wonder if their behaviour is professional. How can we deal with this situation?

Answer: The key thing is that owners are able to vote (and do vote) freely, enthusiastically and genuinely, and if they do that, then that vote counts.

Where it gets to legally is that people are entitled to have an opinion and express that. Whether that is ‘vote for me’ or ‘vote against that’ is 100% fine and laws relating to body corporate records are of such a nature to allow people who want to share that opinion to contact all owners to do so. The key thing is that owners are able to vote (and do vote) freely, enthusiastically and genuinely, and if they do that, then that vote counts.

Whether the behaviour is professional or not is a subjective opinion and that is not something the BCCM Act regulates anyway!

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #632.

Question: Is a ballot legal if no numbers are indicated at an AGM? Can the vote be passed without as a legal item in Minutes?

Answer: Not having the count shouldn’t invalidate a properly made decision.

I think the lawfulness of a ballot depends on all of the procedural issues associated with it – timing of the notices, right material sent etc etc etc

Not having the voting count in the minutes doesn’t comply with the requirement the minutes must be full and accurate, but not having that shouldn’t invalidate a properly made decision. What should happen is that the body corporate should be asked to include the count in the minutes.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #618.

Question: BCM claims that our service provider received the majority of votes for renewal of the contract at the AGM. They state that they destroyed the ballots and never handed them to the returning officer as they were secret. I contend that this makes the ballot invalid. Am I wrong or right?

Answer: Voting at a body corporate meeting can be a challenging process, with many moving parts.

I couldn’t possibly be definitive based on your short description of the situation.

What I would say, though, is that voting at a body corporate meeting can be a challenging process, with many moving parts. If one part does not go according to legislation, or appears not to, then that does not automatically mean the result is invalid. It might, for example, depend on how the numbers went at the meeting. If the vote was 90 ‘yes’ and 2 ‘no’, then it’s extremely unlikely the allegedly ‘destroyed’ votes would make a difference. Then again, if the vote was 47 ‘yes’ and 45 ‘no’, then that’s a very different story. I recommend you consider this aspect of the situation before taking any further action.

Note that you have 3 months after the meeting in which to challenge the result. You would need to demonstrate, based on objective evidence, which part of legislation was not complied with, in your view.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #616.

Question: If you have an EGM coming up and an owner has already voted before the EGM, can that same owner revise or change their vote at the EGM?

Answer: Yes, if they are present they could vote from the floor and ask for their voting paper to be withdrawn.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #612.

Question: We were instructed to post voting forms in, but some owners who could not attend the AGM gave their forms to another lot owner. Is this OK?

Voting forms for our AGM were sent out by our Strata Manager.

We were Instructed to send votes to a post box.

Considering the unreliable delivery of the mail service, some residents who could not attend the AGM asked a committee member to take their votes in sealed envelopes to the meeting.

The scrutineer rejected these votes as invalid. Is this correct?

Answer: If the instructions on how to submit the vote aren’t followed then it is reasonable to reject votes that are not submitted that way.

William Marquand, Tower Body Corporate:

All ballot votes should contain instructions on them explaining how to submit the vote. If those instructions aren’t followed then it is reasonable to reject votes that are not submitted that way.

Most likely the ballot papers will state that they have to be submitted either directly to the returning officer or the secretary (including the body corporate manager in their delegated position) depending on the nature of the vote. If your votes were submitted to the wrong person, they were probably rejected on that basis.

Is the system fair? I think that most people would say yes in that it has an established set of rules that make vote submission equal for all parties. That’s a necessary standard for voting. However, many people would also say that the system is also overly complex and needs to be updated to reflect modern technology. Too many ballots are plagued with issues over around submissions, with postage issues topping that list. If the idea of a ballot is to capture the opinion of owners then the validity of the current system seems less robust.

Are there other alternatives to getting your vote in if there is no time for the post and you can’t make it to the AGM? Some returning offices accept votes by email – ask and see. I can see how votes submitted this way may no longer technically be perceived as secret, but the returning officer is supposed to be an independent party and hey, it is 2022, so voting perhaps this should be a more accepted practice. It may also be possible to submit your vote with a note that you are happy for it not to be secret. Secrecy is to protect individual rights but if the owner chooses to waive that right it seems reasonable to count that vote. There is nothing to say this can’t happen.

Chris Irons, Strata Solve:

Think about, for a moment, the recent Federal Election.

When you got to the polling booth, you were given the two voting papers and some pretty detailed instructions. Especially about the Senate voting paper.

Then, off into the booth you go. At that point, it was up to you what happened. You could have put in some numbers, all numbers, ticks, crosses or whatever. You could have drawn rude symbols all over your papers. You could have added other candidates, or you could have written a lengthy diatribe about your views on democracy. Or if you had a child with you at the time, you could have gotten them to fill it all in.

My point is this: it’s one thing to give instructions about voting. It’s 100% up to the voter what they actually do with their vote and then the challenge is for the returning officer to determine if the vote is compliant or not. If it is, it gets counted. If not, off into the ether it goes.

So in this body corporate scenario, the returning officer has a defined role according to legislation and made a decision. Whether or not that decision was legal in the circumstances will be up to an adjudicator. And adjudicators tend to not want to alter a decision unless it was close. If in your case, the votes were 70-10 in favour, it’s hardly likely these particular votes would have made any difference. If the votes were 41-39, then that’s a different story and it will be up to the aggrieved party – and any other voters – to argue why their vote was or was not valid in the circumstances. There would need to be a rigorous analysis of the ‘unreliability’ of mail delivery you mention.

There are many variables, as Will has pointed out.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #609.

Question: Can a Lot Owner pre-vote the day before the AGM, for a ‘from-the-floor’ nomination for an office bearer (eg, Treasurer) at AGM?

Answer: Your advance vote shouldn’t be counted.

‘From the floor’ means that the voting or nomination is taking place live during the meeting so you couldn’t vote in advance of this because it hasn’t happened.

You may be aware that someone is going to nominate from the floor, but in that instance all votes would stilled be polled from those present at the meeting. Your advance vote shouldn’t be counted.

If you want to have your vote counted, it would be best to attend the meeting.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #600.

Question: Our strata management company sent a secret ballot for committee nominations with a wrong building’s returning officer envelopes. Is the whole AGM invalid?

Our strata management company sent a secret ballot for committee nominations with a wrong building’s returning officer envelopes.

We are not sure how many owners returned the ballots in the wrong building’s envelopes without even noticing that the return envelope was not for our building.

Is the whole AGM invalid?

Answer: The motion voted upon by secret ballot may be invalid, not the entire annual general meeting.

The regulation module sets out the process that the Body Corporate must follow to conduct a secret ballot.

Section 109(4) of the Body Corporate and Community Management (Standard Module) Regulation 2020 relevantly provides (for instance):

All completed hard copy and electronic votes received before the votes are counted at the general meeting must be given to the returning officer and held in the returning officer’s custody until the votes have been counted.

If the votes were not returned to the returning officer for the Scheme, then the secret ballot has not been validly conducted by the Body Corporate.

In Parkwood Villas [2016] QBCCMCmr 161 the adjudicator, however, relevantly provides:

The courts have recognised that the detailed provisions of the body corporate regulations make non-compliance almost inevitable from time to time. It has been held that minor instances of non-compliance will not invalidate a decision, particularly where a committee has acted in good faith. Therefore, meetings and decisions should be preserved despite minor errors, omissions or other procedural irregularities in meeting procedures, unless it can be shown that there has been some fundamental disadvantage to voters.

It would need to be shown that the incorrect return envelopes materially affected the outcome of the motion or was not minor non-compliance (which seems likely). In these circumstances, the motion voted upon by secret ballot would be invalid (not the entire annual general meeting).

Holly Dunne Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #583.

Question: Can the Resident Manager lobby for votes to achieve a decision that best suits them?

Can the Resident Manager vote farm to achieve the composition of committee members that best suits them?

I am not referring to proxy voting. The Resident Manager may be emailing investors to farm votes For or Against motions that favour the Resident Manager. e.g. Management Contract extension and a Motion that would significantly reduce payments for services that are not in the Management Agreement.

Answer: Strata is like politics: it is about the numbers.

There is no prohibition on lobbying for votes in a strata scheme. Plenty of people think there is, or there should be. There is not, though. To be blunt, strata is like politics: it is about the numbers. As crass as that sounds, that is the reality.

Bear in mind, if someone is out there actively campaigning for an outcome, then you can also actively campaign for the position you want, or you can campaign against that other person’s position.

There is a provision about body corporate mangers not unduly influencing the outcome of an election – Schedule 2 of the Body Corporate and Community Management Act 1997 – yet there is no similar provision relating to caretakers.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #583.

Question: Our resident manager lobbied lot owners and committee members to not vote for my nomination as a Committee Member, as I was a ‘troublemaker’. Is this appropriate behaviour in a QLD Body Corporate?

Leading up to our AGM, the Resident Manager spoke to and also called Lot Owners and advised/encouraged them to not vote for my motions or for my nomination as a Committee Member. The basis was that I was a trouble maker.

Over the past five years, as a Lot owner I was successful in forcing the Committee to replace missing street signs, raised motions to stop Committee Members from claiming up to $1,000 for attending meetings and I’m in the process of stopping payment of $8,400 annually to the Resident Manager for reading 168 water meters every six months.

Is the action of the Resident Manager and Committee member appropriate and /or legal? Does it comply with body corporate voting rules?

Answer: Lobbying is certainly not illegal.

What’s ‘appropriate’ is always in the eye of the beholder, but lobbying is certainly not illegal. Everyone is entitled to voice their opinion on matters relating to the scheme – including you. It is then that the democracy that is strata kicks in, and if people are inspired to vote, they will.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #564.

Question: In QLD, can a lot owner in a subsidiary scheme attend a meeting of the principle scheme as an observer?

Answer: In a layered scheme, the subsidiary scheme as a whole is technically the owner, so there is no automatic right for an owner within that subsidiary to attend.

While I’m sure you would be hoping for a straightforward yes/no answer to this query, it really is not that simple.

I am assuming you are referring to a committee meeting (there is a world of different between committee and general meetings). There is no provision for attendance as an ‘observer’. There are several provisions for attendance depending on if you are a voting, non-voting or non-member of the committee. In a layered scheme, the subsidiary scheme as a whole is technically the owner, so there is no automatic right for an owner within that subsidiary to attend. There may be other options as noted above.

Perhaps a better way of looking at this is to be clear on what you would hope to achieve by attending the meeting in question. Is it a general desire, in order to witness a process? Or is there something specific you are concerned about? There may be better ways to achieve either. Remember also that if you do attend, you are restricted in how you can participate in the meeting and indeed, you can be asked to leave in certain instances.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #564.

Question: In what situations do committee members need to declare a conflict of interest in a matter and abstain from voting?

Our body corporate has to replace some unit’s windows which are in common walls. These windows are a body corporate maintenance responsibility. They are currently either awning style or fixed panes and have to be replaced as part of a maintenance project.

Some unit owners on the committee would like to have some of their unit windows replaced with more expensive louvres while others want to keep the same styles.

It is a general principle that body corporate maintenance projects replace like for like (or a modern equivalent).

If the committee votes on whether to install louvres, wouldn’t those committee members who want louvres need to declare a conflict of interest in the matter and abstain from voting?

Otherwise, they are voting on an issue in which they can derive a financial benefit by getting the other members of the body corporate to fund upgraded windows in their units.

It seems to me to be a clear conflict of interest.

Answer: A committee member is required to disclose and refrain from voting upon a matter where there is scope for their personal financial or material interests to conflict with their fiduciary obligations to the body corporate

First and foremost, we assume from the question that the Body Corporate will be responsible for payment of the louvre windows. Therefore, the Committee is not approving an improvement to common property by an owner (whereby the owner is responsible for the cost associated with the improvement) however, is approving works to occur to common property and authorising the cost associated with same. As the question states that the matter will be voted on by the Committee, we presume that the expenditure is capable of being authorised by the Committee and therefore have not considered this aspect.

On those assumptions, we provide the below general information for your consideration.

The relevant section dealing with a conflict of interest at Committee level is section 66 of the Standard Module / section 58 of the Accommodation Module. These sections relevantly state [our emphasis]:

“A member of the committee must disclose to a meeting of the committee the member’s direct or indirect interest in an issue being considered, or about to be considered, by the committee if the interest could conflict with the appropriate performance of the member’s duties about the consideration of the issue.”

“If a member required under subsection (1) to disclose an interest in an issue is a voting member, the member is not entitled to vote on a motion involving the issue…”

Additionally, we note that the Code of Conduct for Committee Members in Schedule 1A to the Act states that Committee members “must act in the best interests of the body corporate in performing the member’s duties”.

Adjudicators have stated that the term “conflict of interest” is a broad term, generally used in the context of a person voting upon a motion to obtain a material benefit that they would not otherwise be entitled to. The purpose of that section is to prevent a committee member from voting on an issue if their personal interest in the issue could conflict with the appropriate performance of their duty to consider the issue in the interests of the Body Corporate (V Human Space [2007] QBCCMCmr 105 (27 February 2007)).

Alternatively, as described in Grand Pacific Resort [2010] QBCCMCmr 255:

“Put simply, a committee member is required to disclose and refrain from voting upon a matter where there is scope for their personal financial or material interests to conflict with their fiduciary obligations to the body corporate – for example where a committee is a party to a contract with the body corporate or has a beneficial interest in a business that supplies goods or services to the scheme.”

On the limited information provided, we see a potential argument that:

the installation by the Body Corporate of more expensive louvred windows on Committee members’ lots would provide a direct benefit to those Committee members, as the effect of the motion will be that their lots will receive improvements to the windows rather than the maintenance of the existing windows;

that personal interest could conflict with the obligation for those Committee members to vote on the motion in such a way that is in the best interests of the body corporate; and

those Committee members should seriously consider whether they feel their personal interests conflict with the best interests of all owners and declare a conflict of interest at the meeting and abstain from voting on the relevant motion.

If the relevant Committee members do not declare a conflict, and as a result the relevant motion passes, an owner or interested person could apply to the Commissioner’s Office seeking orders invalidating the conflicted Committee members’ votes. However, we do caution that such action is only likely to be of any material benefit if the outcome of the motion would have been different if those conflicted members had abstained from voting.

It goes without saying that there are a number of variables when considering maintenance vs improvement works and conflicts of interest. We would therefore encourage a concerned owner to obtain independent legal advice.

Jessica Cannon & Jessica Stanley Cannon + Co Law E: jessicacannon@cannonlaw.com.au P: (07)55 548 560

This post appears in the August 2021 edition of The QLD Strata Magazine.

Question: Please go over the 10% minimum for a quorum. Does the Body Corporate need to pass a special resolution order for this change to occur?

Answer: That’s right. Before that applies, you need to pass a special resolution.

That’s right. Previously, the limit was 25%. You need that percentage of voters to send in a voting paper or attend a meeting. You can reduce that to any number between 10% and 25%. So you can reduce it to 17% or 12% – whatever body corporate ones. I think most people will go all the way to 10% rather than getting caught somewhere in the middle.

Before that applies, you need to pass a special resolution. So it’s not going to apply to many bodies corporate yet because it’s only been a few months so I’d expect over the next 12 months you’ll pass your special resolution and then your next general meeting after this one is when you’re actually able to have the reduced quorum applied at the meeting.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #488.

Question: If a voting committee member is not present at an ordinary committee meeting and doesn’t give another committee member their proxy, are there any circumstances under which they can still vote on a motion put forward at that meeting?

Answer: A voting member must be present or appoint a proxy, they are unable to vote before or after a motion to be resolved at the committee meeting. Some flexibility may be possible in defining what ‘present’ at a meeting means – it should be fine for a member to attend by telephone or zoom if they can’t be in physical attendance.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #476.

Question: I have a variety of questions about the voting process, number of votes, whether the vote is valid and what to do when one owner holds the majority of the votes.

When owners are voting at an AGM, is the vote valid if the individual pages do not have a signature or a lot number? Also, the last page is not completed with the Owners name, signature and lot number.

When a voting paper has two lot numbers written on the front page i.e. 1 and 7, is the owner entitled to two votes or one? Shouldn’t two forms be filled out to have two votes? Also, as above each page was not signed. Also, if 20 people voted shouldn’t each Resolution have 20 votes?

We have several Resolutions adding to 16, 18 and 19 and the resolution to extend the Caretaking Agreement had 22 Votes! How can you have a total of 22 votes when only 20 people voted?

Is the Caretaker/Letting Manager allowed to buy up Units in the development? They now own 4 Units plus have the Proxy of one Owner. When only 20 people vote, the Caretaker has 25% of the Votes making it very hard to pass any Motions. Is this legal? Is this voting process valid?

Answer: Most of your questions will be determined under the authority of the Chairperson.

While the Secretary is nominated to receive the votes the function of determining their validity is delegated to the Chair.

Advance voting papers should be signed, with the owners name and lot number clearly written. If not, they could be ruled out if the intention of the owner is not clear. However, if the paper is missing some of the information then it can still be ruled valid. For example, if the voting paper submitted doesn’t have a lot number recorded but clearly comes from John Smith and there is only one John Smith on the roll it may be reasonable to count that vote. The important thing is to be clear and consistent in any rulings where there is room for debate.

It is common for owners to own more than one lot and in that instance, they usually list all lots on a single voting paper. So long as this is marked clearly there shouldn’t be an issue with this.

The number of votes recorded should not exceed the number of lots voting. However, it may be that the number of people voting is less than the number of lots recording votes as some of those people may own multiple units. If Mr Smith owns three units he will be one person attending the meeting but may have three votes counted. The minutes should reflect this and if you have any concerns you should ask your body corporate manager to clarify.

There is no rule preventing the caretaker from owning lots in a complex and their votes are as valid as the next owners. Sometimes the regulations can create situations where quite a lot of authority is placed in the hands of one person. That’s not always satisfying but it is not incorrect.

Most of the questions here will be determined under the authority of the Chairperson.

The government website lists their duties when chairing a general meeting as including:

ruling a motion out of order if:
- it is unlawful or unenforceable
- it conflicts with a by-law
- the substance of the motion was not included in the agenda for the meeting

declaring the results of votes on motions at the meeting

confirming that each ballot paper is the vote of a person who has the right to vote in the election (where a ballot for a committee position is needed)

declaring the result of an election for a committee position.

So the chair will need to check votes received and determining the validity of the vote.

Validity will include questions such as whether the owner is financial and in a position to vote and questions over whether the voting forms have been filled incorrectly.

There can be a lot of debate around this as not all voting forms are filled in exactly but they should certainly indicate the owners name and signature clearly and without this, they may not be considered valid.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #465.

Question: Who is entitled to vote to increase the number of committee members for a principal scheme to up to 12 as allowed under the new regulation changes?

Who is entitled to vote to increase the number of committee members for a principal scheme to up to 12 as allowed under the new regulation changes? Then how are the members voted in if there are more nominations than positions? Who is entitled to vote then?

For Example, our layered scheme subsidiaries, 6 lots, 24 lots and 1 undeveloped lot. Currently, the PBC committee consists of 1 representative from each subsidiary scheme.

Answer: If the PBC has 7 or more members, it can pass an ordinary resolution to increase the number of committee members to a maximum of 12.

If the PBC has 7 or more members, it can pass an ordinary resolution to increase the number of committee members to a maximum of 12. So it is decided by the PBC members (which can be bodies corporate or standalone lots depending on how the layered arrangement has been structured). If there are more nominations than positions available, a ballot would take place.

It does not sound like the below PBC would have 7 or more members if it has 2 bodies corporate and an undeveloped lot as its members.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #455.

Question: Is a Flying Minute/Vote Outside of Committee Meeting removing the rights of owners and occupiers from using common property valid?

QLD Body Corporate under the Accommodation Module had a Flying Minute/Vote Outside of Committee Meeting which was passed removing the rights of owners and occupiers from using common property = the use of moving in/out using the building front door and ground floor lobby. Removing rights and privileges [AM 42.1.b] is a restricted issue for the committee to vote on.

My questions are:

Is that VOC considered a vote on a restricted issue?

The VOC passed so is that vote valid and binding on the Body Corporate residents to abide by?

The committee are basing an ordinary motion at the AGM on that FM/VOC result – is that a valid motion?

Answer: If you haven’t already done so your first step is to raise your concerns with the committee.

You’re asking for yes/no answers on queries which I’m afraid don’t necessarily have yes/no responses. Every case is considered on its merits.

With that in mind, I’ve responded to your queries in turn below:

It may be. My questions to you – has that really ‘removed’ rights? Or is there a reasonable basis on which the committee has made that decision? I don’t have any context to comment further

The vote is valid until such time as it is declared otherwise by an adjudicator, or some other method (e.g., it is rescinded). Of course it is up to the committee to now execute that decision. They may run into practical issues with that and of course, I’ve not been provided any details how about they may intend doing that.

Motions submitted must – not may – be ruled out of order by the chairperson if they are unenforceable or otherwise conflict with the Act. Otherwise, the motion stands until such time as it is declared otherwise by an adjudicator. Or, of course, it is defeated at the general meeting.

I’m sensing from the tenor of your queries you’re not happy with what has transpired and consider that breaches have occurred. Fair enough, but now the onus is upon you to do something about that and bearing in mind what I’ve said above. If you haven’t already done so your first step is to raise your concerns with the committee.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #421.

Question: If a lot owner passed away and there are significant delays in the granting of probate is the executor of the will able to vote?

If a lot owner in our complex passed away when does the body corporate need to be notified?

What if there are significant delays in the granting of probate and/or the will is contested? In such circumstances, and in any event, is the executor able to vote?

Answer: There is no requirement for anyone to notify the body corporate of an owner’s passing.

There is no requirement for anyone to notify the body corporate of an owner’s passing.

However, a “voter” at general meeting is defined in section 83 of the Standard Module and includes a representative of the owner of a lot.

A representative can then extend to a guardian, trustee, receiver, power of attorney or other representative authorised to act on the owner’s behalf. This would contemplate an executor if the will authorised the executor to vote on behalf of the owner at body corporate meetings.

For a representative to be able to actually vote on behalf of owners the secretary must be given a copy of the document giving the representative authorisation to vote on behalf of the owner (or satisfy the secretary of the right to do so).

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #409.

Question: Our Committee just held a “Committee only voting” meeting to vote in the new committee. Are we able to have a say in this?

Our Committee just held a “Committee only voting” meeting to vote in the new committee. No other owners out of 28 lots could have a say or nominate a person to be the new Chairman or Ordinary committee member.

This has been the same committee for the last 10 years. They just seem to rotate positions between 7 of them.

Then, at the same “Committee voting only” meeting, the New Committee voted in a new Service Contractor for grounds maintenance for a year. The owners were not allowed to view the tenders or vote on who they wanted as mowing Contractor. Are we allowed or NOT allowed to have a say in this? I thought new contracts had to go to General or EGM Meeting?

Answer: A committee can only be elected at a general meeting. They don’t have the ability to elect themselves without reference to owners.

A committee can only be elected at a general meeting. They don’t have the ability to elect themselves without reference to owners.

If there is a vacancy on the committee though, it is up to the existing committee as to who steps in until the next AGM – Committee resignations – what happens next?.

In terms of the service contract, a committee can vote it in provided it is for less than 12 months and it is also inside their spending limits, which we wrote about here: QLD: Q&A Body corporate spending limits – What are they and when do they apply?

In that sense, it is no different to obtaining legal advice. If it is short term and inside their spending powers, it is what they are there to do.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the September 2020 edition of The QLD Strata Magazine.

Question: When completing a secret ballot can I use a plain envelope and write the necessary details on it before putting in the envelope addressed to the returning officer or must I use the envelope included?

With COVID-19 mail can be delayed. Can an owner who wishes to vote to make their own envelope for the placement of their secret ballot before waiting for the one supplied by the secretary to be received.

Answer: An owner can create his/her envelopes however in the case of a Secret Ballot it is important that a two envelope system be used as follows:

An owner can create his/her envelopes however in the case of a Secret Ballot it is important that a two envelope system be used as follows:-

The FIRST ENVELOPE should contain the completed Secret Ballot paper which should be sealed and marked SECRET BALLOT PAPER

Fold and place the FIRST ENVELOPE containing the ballot paper into a SECOND ENVELOPE which is to be addressed –

The Returning Officer,

Scheme Name…….. CTS No ……”

Insert Address of the Returning Officer

On the back of the SECOND ENVELOPE the following PARTICULARS must be completed:

the number of the lot for which the vote is exercised;

(one ballot paper must be completed for each lot owned if more than one – in separate envelopes)

the name of the owner of the lot;

ie John & Mary Smith or if a Company ie Bright Lighting Pty Ltd

the name of the person having the right to vote;

ie John Smith – If a Company the name of the Nominee must be stated as on the Roll

the basis for the person’s right to vote;

Owner – or if a company insert “as Nominee”

The PARTICULARS section is extremely important. If these details are not accurately provided or do not match with the information on the Body Corporate Roll, your ballot paper could be marked invalid as the Returning Officer has no means to identify that you are the lot owner completing the ballot paper.

Dee Pannell Body Corporate Matters E: dee@bodycorporatematters.com.au P: 0409 873 181

This post appears in Strata News #382.

Question: If a lot owner has an enduring power of attorney for an elderly parent that is also a lot owner in our complex, does that entitle them to have 2 votes in the case for voting for Body Corporate Management rights, given you can’t vote for this motion via proxy?

Answer: Proxies and powers of attorney are different things.

Proxies and powers of attorney are different things. As you point out there are restrictions on proxies but those same restrictions don’t apply – yet – to powers of attorney. I say ‘yet’ because the government had intended, in its draft legislation released several months ago now, to restrict power of attorney use.

That legislation remains draft though and isn’t law, so for now, the situation remains that powers of attorney can be used in ways proxies cannot.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #380.

Question: Would matters such as is the papers signed, or the Lot number indicated potentially affect the validity of the votes?

Answer: The short answer is yes, those things could have a bearing.

The short answer is yes, those things could have a bearing. That is ultimately for an adjudicator to decide and also to decide how much detriment was caused.

Let me give you an example. Suppose of 30 votes cast on a motion, 1 vote did not have the correct lot number filled in. 28 of those 30 votes voted ‘yes’ to the motion. While you could say that the 1 vote wasn’t cast correctly and therefore that invalidates the meeting and the motion, the fact that no one was caused any harm or that the outcome would not have changed, would mean it highly unlikely an adjudicator would find it necessary to invalidate.

On the other hand, if it was a resolution without dissent and all bar that 1 vote was the ‘dissenter’, then that’s a different story.

The best way forward is to follow the legislative process, take advice from your body corporate manager and, if necessary, seek legal advice. Rely also on previous adjudicators’ orders, which you can search for at the Australasian Legal Information Institute.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #374.

Question: Our 2020 AGM will be conducted by voting paper. Should another member of the Committee to be present when votes are opened to both confirm the validity of each vote and to oversee the counting of the votes?

Like many in Strata land, our 2020 AGM will be conducted by voting paper. The Notice of Meeting sent to owners instructs voters to send their voting papers to our Secretary care of our Body Corporate Managers.

Is it necessary, or even advisable, of our Secretary or another member of the Committee to be present when votes are opened to both confirm the validity of each vote and to oversee the counting of the votes? Or should we just leave it up to out BCM to oversee the process?

Some owners have placed their votes (in sealed envelopes) in our Secretary’s private letterbox. As this is contrary to the instructions set out in the Notice of Meeting, are these votes still valid? I certainly hope they will be, as we often have difficulty getting a quorum for our AGM’s and disqualifying votes on a technicality will only make the job of reaching a quorum harder.

Answer: Votes lodged contrary to instructions and/or legislation are fraught with danger, frankly, and may indeed be grounds for the meeting outcomes to be invalidated.

Your query touches upon issues raised in a recent and sensitive adjudicator’s order for a scheme called Whitsunday Waters Resort.

I’ll leave you to read this and the myriad commentary on it at your leisure. The order highlights that voting in a body corporate is a process which is open to so many potential issues. My experience is that general meeting voting processes is the number one most disputed category in the Commissioner’s Office.

On your particular query, I’m not sure what you quite mean by ‘confirming the validity’ of votes. You’re only meant to be doing what the legislation prescribes and that will depend upon which Regulation Module you’re under. In relation to the role of your body corporate manager, their role is largely defined by the nature of your agreement with them, although you’d need to pay particular attention to the adjudicator’s comments about the role – or not – or mangers in the order I’ve cited above. You may need to seek legal advice given the intricacies involved.

Votes lodged contrary to instructions and/or legislation are fraught with danger, frankly, and may indeed be grounds for the meeting outcomes to be invalidated. Having said that, adjudicators are loathe to make such orders solely on the basis of technicalities and will tend to look at the bigger picture of what detriment arose from the motions and the meeting.

My view is that if there are any tension within the scheme, or voters who have a tendency to challenge, or if any of the motions are contentious and tense, then the committee need to be taking a very low risk approach to the voting process and making the time to clarify its and voters’ obligations.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #359.

Question: I’ve received Voting Papers to fill out for our AGM. The instructions say to circle your response next to each motion you wish to vote on. Is this appropriate?

I’ve received Voting Papers to fill out for our AGM to be held in May via Zoom. The instructions say ‘if you want to use this voting paper, then mark either YES, NO or ABSTAIN (e.g. by a circle) printed opposite each motion you wish to vote on.’

I would have thought marking with a tick or cross would be more usual and a circle could be confusing. Would you please advise?

Answer: As long as the voting intent is clear it doesn’t matter what mark you use.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #349.

Question: What is the procedure for committee voting? Does one committee member move a motion and another committee member seconded that motion? Then after that, the committee members vote?

What is the procedure for committee voting? Would you be able to explain the body corporate voting rules? Does one committee member move a motion and another committee member seconded that motion? Then after that, the committee members vote?

Does everyone in the process have to be a committee member?

Answer: Procedures for committee voting are set out in the legislation and are quite detailed.

Procedures for committee voting are set out in the legislation and are quite detailed. You can read about some of them here.

There’s no process for moving and seconding, as there is in some other types of meeting processes. Only eligible voting committee members are able to vote at a committee meeting.

Be sure you’re clear on what type of meeting you’re referring to. All owners vote at a general meeting and it’s at the general meeting that the committee is elected. The committee is responsible for day-to-day decision-making.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #345.

Question: Our application to have a dog was sent around to all owners with a discussion on why the application should be denied. Is this a normal part of the body corporate voting rules?

After moving into our unit we were told we had to have permission for our dog.

We filled in the application and sent to the owners (8). We were told by a tenant that an email was circulated by the acting chairman to the other owners to discuss the reasons why this application should be knocked back. Is this the normal way of voting on matters? We feel we should have at least been sent the same email.

Answer: There’s an idea in some people’s minds that lobbying should not occur but there is nothing preventing it.

Once a motion goes out to be voted upon then it is up to the eligible voters as to how they’ll respond – whether that be ‘yes’, ‘no’, ‘abstain’, or, in your case, lobbying other voters to their preferred outcome. I know there’s an idea in some people’s minds that lobbying should not occur. The fact is that there is nothing preventing it from occurring and there have been several adjudicators’ orders on this point. While you might think it good form or even common courtesy to have seen a copy of the chair’s email to other voters, it’s up to that individual as to how they want to communicate their thoughts on the motion. The reverse scenario is applicable too. You were and are entitled to approach other voters about a motion, suggesting to them the way you’d prefer them to vote.

If you want to be very clinical about it, voting in a body corporate is the same as voting in any other context: it’s a numbers game. The weight of numbers will carry the day and trying to convince people to vote a particular way is, like it or not, part of that process.

What I would say, though, is that it is always about how you do that ‘convincing’. Putting forward a solid explanation with clearly-outlined benefits of a motion is fine. Saying things about a motion which are not true or veering into personal attacks is generally where the problems start.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #328.

Question: Where it can be established that the voting form was completed by the letting manager but signed by the lot owner, what are the body corporate voting rules and are these votes valid?

Prior to the AGM, the property manager / letting agent contacted many individual owners by email using company letterhead. They advised lot owners that if they had not already voted, the property manager could complete their voting form and email it back to them. The property manager said they could sign the last two pages the property manager had filled in for them and email the voting paper to the Body Corporate Manager.

Do the actions of the property manager breach the Code of Conduct for letting agents? I’m especially concerned about the provisions which deal with acting in the best interests of the body corporate and INDIVIDUAL LOT OWNERS. In this instance, I feel it can be demonstrated that voting papers prepared by the letting manager were contrary to the best interests of a lot owner. I feel they have used unfair tactics against the lot owners.

Where it can be established that the form was completed by the letting manager but signed by the owner, what are the body corporate voting rules and are these votes valid?

Answer: This would more than likely invalidate the votes.

There is nothing stopping a person from lobbying owners to vote a particular way – but they need to make sure that the votes are not interfered with, which extends to passing the vote on through someone else.

This would not breach the code of conduct in the way complained of but would more than likely invalidate the votes.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #317.

Question: Can the body corporate pass an amendment or get something repaired with only three of the eight owners voting? What are the body corporate voting rules about this?

Answer: If it is a general meeting vote and no one else votes against it, yes they can!

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #288.

Question: We are looking for information about the body corporate voting rules for a committee at an AGM who was elected without counting votes.

A committee, at an AGM, was elected without counting votes. Two people were nominated for Chairperson and two people for Treasurer. The same person stood for both positions but was ruled out by the current Chairperson because he was not financial at the time of lodging the nomination papers. This then affected all voting for the other positions on the committee. The majority of lot owners at the AGM asked for this to be reversed and a new election to be held.

To keep this brief can a committee that was not elected (votes not Counted) be removed and a new election made. What would the body corporate voting rules be and what would be required?

Answer: It is the same process to change the committee regardless of whether there was a ballot or not.

It is the same process to change the committee regardless of whether there was a ballot or not. An ordinary resolution at a general meeting can remove or replace any committee member. So if the committee is not supportive of calling that EGM an owner would need to consider requisitioning one (which needs 25% of owners to sign a letter of support).

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #223.

Question: The body corporate manager and current committee members are advising lot owners on “how to vote”. This does not sound like it will produce an unbiased result.

I have recently moved into an “over 50’s Strata Title apartment in Southport, Qld. The AGM is looming shortly and owners have received a mountain of paperwork including two secret ballot papers (blue) as well as the normal voting paper (yellow). This is confusing at best of times, more so if residents are sometimes well over 50.

The Body Corporate manager for the units has made herself available to assist residents with any problems they may need to have clarified. I feel this is a great help and very reasonable.

However, I would like to voice my concern that current committee members have also been at this event and I have seen more than one case of a committee member folding and putting a yellow paper into its envelope and sealing it.

Although I have NO idea what other involvement (if any) the committee members have had or if they have identified themselves as “just helpers” or “part of the committee”, I have a strong concern that this situation could well lead to collusion.

Are there any recommendations or rulings on this? What are the body corporate voting rules? Having ONLY a body corporate manager and current committee members advise on “how to vote” does not sound like it will produce an unbiased result. Could you please enlighten me?

Answer: Lot owners must be able to exercise their votes freely and enthusiastically.

Where it gets to is that owners must be able to exercise their votes freely and enthusiastically. That doesn’t mean that they cannot be assisted to do so, but there is a fine line between that and being stood over by interested parties.

We wrote a full newsletter on what the meant here: Topping up management rights agreements – the contest continues.

Anyone, including the current committee, is entitled to lobby owners to vote in a particular way. There is nothing that can prevent that.

In terms of the paperwork, while it may be confusing I very much suspect that it is what the BCCM Act requires, so while it would be better if things could be simplified, I suspect it is not possible.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #221.

Question: Do I vote for every person standing for election, or just for the people I want? To comply with body corporate voting rules, should each box be marked/ticked?

We reside in Queensland. Our voting paper for the election of Body Corporate committee advised that there were 6 candidates for 5 positions. It did not state whether each box should be marked/ticked.

To comply with body corporate voting rules, does an authorised voter have to vote for every person standing, or just for the people they want? I have received some unofficial advice saying you only have to mark the boxes of whom you want, not everyone. I think this is a Federal law also.

Answer: In Queensland, you can vote for as few or as many people as you want.

This has nothing to do with federal or state voting laws. Those are parliamentary election specific.

In Queensland, you can vote for as few or as many people as you want.

If there was a Melbourne Cup field of candidates you could vote for all 24. You could also vote just for one.

What happens at the end of the days is all of the candidates have their votes tallied and the person with the most votes is guaranteed the first spot and so on down until all the positions are filled. If the last spot or spots are tied, then the position is determined by a method of chance determined by the meeting. My experience is that when it is two candidates it is a coin toss and where it is more we usually draw straws!

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #176.

Question: Can a Body Corporate Chairman tell other owners how to vote at the upcoming AGM? What are the body corporate voting rules here?

We have a situation where our Body Corporate Chairman has informed the other lot owners how he would like them to vote at the upcoming AGM. Is this a reasonable course of action or does it go against body corporate voting rules?

Answer: Yes. A committee member or a committee as a whole can make recommendations to owners about voting.

Yes. A committee member or a committee as a whole can make recommendations to owners about voting.

The one thing that an individual committee member needs to be aware of when doing so is to clarify whether they are doing that personally in their own right or as a member of the committee – the distinction being important as to who is actually doing the recommending.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

Question: A motion was changed by the incumbent – What are the Body corporate voting rules? What happens now?

We recently provided a proposal for the body corporate management of a scheme in Queensland. Our agreement was submitted to the AGM via an Owner\’s motion. The incumbent body corporate managers are a large company, and there were five companies included in the motion for owners to vote on.

Following the AGM, we were made aware that the current Body Corporate Manager had amended our quoted price on the AGM voting paper and the accompanying explanatory note by increasing it.

I would think that this is fraudulent, but not sure if anything can be done about it. Any advice would be much appreciated.

Answer: Alternative motions are a constant source of conjecture.

The games people play….

Alternative motions are always a constant source of conjecture. What the Module requires is that if there is more than one motion lodged for a meeting and the motions propose alternative ways of dealing with the same issue that they be combined. The former way would have been to put the one you wanted up first and if it was passed, rule anything later out of order.

So in a body corporate management context, the first motion would be that ‘the body corporate engage a body corporate manager.’ If that was passed, the next motion would list the alternatives. Manager A, Manager B and so on. The body corporate manager that wins is the one that gets the most votes from those that voted ‘yes’ to the motion to engage the body corporate manager.

Having said all that, other than crafting the motions to make sure they fit with what the Module requires no one should change what was submitted. If a motion was changed by the incumbent (particularly if it was changed to less favourable (i.e. higher)) costing, then that would be completely inappropriate.

If the owner who lodged the motion thought that materially affected the vote then they would well and truly have rights to challenge that conduct in the Commissioner’s Office seeking that an EGM be called to put forward the motions as submitted.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

Have a question about body corporate voting rules or something to add to the article? Leave a comment below.

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