NSW: Q&A Electronic Committee Meetings and Electronic Voting

This NSW Q&A article discusses the use of electronic or virtual meetings and electronic voting for owners corporation meetings.

Table of contents:

• QUESTION: If the owners corporation does not believe a motion was passed (resolved) in the AGM by electronic voting, can we request proof, or can we change this motion somehow?
• QUESTION: Can the owners corporation conduct voting on motions and the election of the strata committee in a Zoom meeting? How are votes recorded?
• QUESTION: If the secretary neglects to store the electronic ballot papers securely, does this deem the vote invalid?
• QUESTION: The majority of our owner residents don’t want our AGM to be held via “teleconference/zoom”. We’ve been advised our next AGM is to be conducted virtually to accommodate interstate owners. What is the best way to hold a democratic meeting that all interested parties can attend?
• QUESTION: Our AGM will be held by electronic voting thereby negating any opportunity to debate motions on the Agenda. Is this considered fair and reasonable under current NSW Legislation?
• QUESTION: Can our Chairperson instruct our difficult secretary to call for an electronic vote on a number of special resolutions as a way to fast track committee decisions?

Question: If the owners corporation does not believe a motion was passed (resolved) in the AGM by electronic voting, can we request proof, or can we change this motion somehow?

Answer: Irrespective that a “paper meeting” is to be held, presumably by way of pre-meeting electronic voting, as you suggest, a general meeting MUST still be held even though voting has already taken place.

You are correct. Irrespective of the fact that a “paper meeting” is to be held, presumably by way of pre-meeting electronic voting as you suggest, a general meeting MUST still be held despite the fact that voting has already taken place. The results of voting are declared at the meeting. Voting must be submitted (in case of a general meeting) before the close of the ballot, which is 24 hours prior to the actual meeting which must be held.

Regulation 15 Electronic ballot paper for pre-meeting electronic voting refers to the process for pre-meeting electronic voting. See in particular 15(8), which states (emphasis added) – the matter is determined AT the meeting:

8. In this clause, the close of the ballot means—
   
   1. for a matter to be determined by the owners corporation, the time that is 24 hours before the commencement of the meeting at which the matter is to be determined, or

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #670.

Question: Can the owners corporation conduct voting on motions and the election of the strata committee in a Zoom meeting? How are votes recorded?

In NSW, can voting on motions and the election of the strata committee be conducted via a Zoom (video call) meeting? A verbal yes or no system was used.

If this is a valid voting method, should each lot owner’s vote be recorded as part of the plan’s strata records?

Answer: Voting can be done in a meeting held via video conference, by way of verbal, visual (show of hands) or written (e.g. in a chat function) communication.

Process for voting on the election of a strata committee during a meeting held by video conference

The procedure for the election of a strata committee is set out step-by-step in clause 9 of the Strata Schemes Management Regulations 2016 (NSW) (‘the Regulations’):

1. At a meeting of an owners corporation at which the strata committee is to be elected, the chairperson must—
   
   1. announce the names of the candidates already nominated in writing for election to the strata committee, and
   2. call for any oral nominations of candidates eligible for election to the strata committee.
2. A written or oral nomination made for the purposes of the election is ineffective if it is made by a person other than the nominee unless it is supported by the consent of the nominee given—
   
   1. in writing, if the nominee is not present at the meeting, or
   2. orally, if the nominee is present at the meeting.

3. After the chairperson declares that nominations have closed, the owners corporation is to decide, in accordance with the Act, the number of members of the strata committee.
4. If the number of candidates—
   
   1. is the same as, or fewer than, the number of members of the strata committee decided on—those candidates are to be declared by the chairperson to be, and are taken to have been, elected as the strata committee, or
   2. is greater than the number so decided on—a ballot is to be held.

All of these steps can be achieved during a meeting held via video conference, by way of verbal, visual (show of hands) or written (e.g. in a chat function) communication.

If a ballot is required, we look to clause 10 of the Regulations for the procedure to follow:

1. This clause applies to the election of a strata committee for a strata scheme comprising more than 2 lots.
2. If a ballot for membership of the strata committee of an owners corporation is required, the person presiding at the meeting of the owners corporation must—
   
   1. announce to the meeting the name of each candidate, and
   2. provide each person present and entitled to vote at the meeting with a blank ballot paper for each vote the person is entitled to cast.
3. For a vote to be valid, a ballot paper must be signed by the voter and completed by the voter’s writing on it—
   
   1. the names of the candidates (without repeating a name) for whom the voter desires to vote, the number of names written being no more than the number determined by the owners corporation as the number of members of the strata committee, and
   2. the capacity in which the voter is exercising a right to vote, whether—
      
      1. as owner, first mortgagee or covenant chargee of a lot (identifying the lot), or
      2. as a company nominee, or
      3. iby proxy, and
   3. if the vote is being cast by proxy—the name and capacity of the person who gave the proxy.

This can be tricky to navigate during a meeting by video conference in terms of providing and receiving ballot papers, for example:

• In clause 10(2), the attendees must be given a ballot paper – this could be emailed to them, or the attendees could be given a link to a website with a form to complete.
• In clause 10(3), where the attendees must sign the ballot paper – the form would need to have the ability for the person to sign it.

Without these parts being satisfied, the ballot papers could arguably be deemed invalid.

This can be easily overcome with a proper digital ballot paper designed to meet the requirements of the law.

Tim Sara
Strata Choice
E: [email protected]
P: 1300 322 213

This post appears in Strata News #665.

Question: If the secretary neglects to store the electronic ballot papers securely, does this deem the vote invalid?

The secretary of our owners corporation breached section 15(7) of the Strata Schemes Management Regulation 2016. Does this compromise the voting process? Should the vote go ahead or be deemed invalid?

15 Pre-meeting electronic voting

7. The secretary of the owners corporation must ensure that all electronic ballot papers are stored securely until the counting of the votes begins.

Answer: In these circumstances, sections 24 and 25 of the Strata Schemes Management Act 2015 may be the best starting point.

Based upon the information provided, I assume there was a motion to be determined partially by pre-meeting electronic voting and partially at a general meeting. I assume the secretary lost the pre-meeting electronic votes, and consequently, motions were determined based on only the votes passed at the meeting.

In these circumstances, sections 24 and 25 of the Strata Schemes Management Act 2015 may be the best starting point.

Section 24 provides that the Tribunal may make an order invalidating a resolution if the Tribunal considers the provisions of the Act and/or the Regulations have not been complied with. However, the Tribunal may refuse to make an order under this section if it considers the matters complained of did not adversely affect any person and would not have resulted in a failure to pass a resolution.

Section 25 provides that the Tribunal may make an order that a resolution passed at a general meeting be treated as a nullity. However, to make such an order, the Tribunal must be satisfied the resolution would not have been passed due to you, and potentially other owners, being improperly denied a vote on the motion.

Under section 25, there is a requirement to make an application for mediation or make an application to the Tribunal within 28 days after the meeting date. If it has been longer than 28 days since the meeting date, it would be best to obtain legal advice in relation to your rights available to challenge the determination of the motions.

My response above is not a complete answer as it is based upon assumptions and does not cover all of the relevant provisions in the Act and Regulations. If the consequences are serious, or if you feel the issue must be resolved, you should obtain legal advice from a legal practitioner specialising in strata law. To obtain legal advice, you will need to provide more information, including a chronology of the events as they occurred, copies of pre-meeting electronic voting forms, details of what occurred at the general meeting, the numbers who voted for and against, etc.

Shane Williamson
Williamson Lawyers Pty Ltd
E: [email protected]
P: 0404 045 605

This post appears in the July 2023 edition of The NSW Strata Magazine.

Question: The majority of our owner residents don’t want our AGM to be held via “teleconference/zoom”. We’ve been advised our next AGM is to be conducted virtually to accommodate interstate owners. What is the best way to hold a democratic meeting that all interested parties can attend?

Answer: Teleconference meetings and electronic voting have now become an acceptable (and common) way to hold meetings.

Due to the amendments to the strata legislation that took effect on or about 30 September 2022 (following on from the introduction of emergency COVID-19 strata meeting measures), teleconference meetings and electronic voting while participating in such meetings have now become an acceptable (and common) way to hold meetings.

If most owners are truly opposed to the idea, you may wish to discuss this with your secretary or managing agent and press your preference to convene an in-person meeting.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #638.

Question: Our AGM will be held by electronic voting thereby negating any opportunity to debate motions on the Agenda. Is this considered fair and reasonable under current NSW Legislation?

The Strata Manager and Strata Committee have orchestrated the AGM to be held by electronic voting thereby negating any opportunity to debate motions on the Agenda. Is this considered fair and reasonable under current NSW Legislation?

Answer: In the current climate it would likely be considered fair and reasonable to hold meetings via such means.

Since 5th June 2020 the strata legislation introduced the emergency COVID-19 measures which permit all strata committees and owners corporations to hold meetings via electronic and other means to assist with social gathering restrictions and so forth. Therefore, in the current climate it would likely be considered fair and reasonable to hold meetings via such means.

Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440

This post appears in Strata News #388.

Question: Can our Chairperson instruct our difficult secretary to call for an electronic vote on a number of special resolutions as a way to fast track committee decisions?

Our scheme has a difficult Secretary on the committee.

Some other committee members would like to convene an electronic EGM to vote on suggested common property external additions.

The secretary has always been against the additions and has suggested that we have an EGM in March or April next year as a tactic to delay the process.

Can our Chairperson instruct the secretary to call for an electronic vote on a number of special resolutions as a way to fast track committee decisions?

Answer: Organising an electronic-only EGM is very easy depending on various conditions.

Karina Heinz:

STRATA SCHEMES MANAGEMENT ACT 2015

39 Convening meetings

1. The secretary of the owners corporation may convene a meeting of the strata committee at any time.
2. The secretary of the owners corporation, or any other member of the strata committee, must convene a meeting of the committee if requested to do so by at least one-third of the members of the committee.
3. The meeting must be held–
   
   1. in the case of a large strata scheme, not later than 28 days after the request is made, or
   2. in the case of any other strata scheme, not later than 14 days after the request is made.

It may be easier to skip straight to a requisition (qualified request) served on the Secretary/Strata manager to call the meeting.

19 Other general meetings

1. The secretary or a strata committee of an owners corporation may convene a general meeting (that is not an annual general meeting) of the owners corporation at any time.
2. The secretary of the owners corporation, or another officer if the secretary is absent, must convene a general meeting (that is not an annual general meeting) of the owners corporation as soon as practicable, and not later than 14 days after, receiving a qualified request.
3. A meeting may be convened on a qualified request even if the first annual general meeting has not been held.
4. A request is a “qualified request” for the purposes of this section if it is made by one or more owners of a lot or lots in the strata scheme having a total unit entitlement of at least one-quarter of the aggregate unit entitlements.

First, you have to ensure the scheme has the authority to vote electronically.

STRATA SCHEMES MANAGEMENT REGULATION 2016

14 Other means of voting—owners corporation and strata committee

1. An owners corporation or strata committee may, by resolution, adopt any of the following means of voting on a matter to be determined by the corporation or committee:
   
   1. voting by means of teleconference, video-conferencing, email or other electronic means while participating in a meeting from a remote location,
   2. voting by means of email or other electronic means before the meeting at which the matter (not being an election) is to be determined by the corporation or committee (pre-meeting electronic voting).
2. Without limiting subclause (1) (b), the other electronic means of voting may include requiring voters to access a voting website and to vote in accordance with directions contained on that website.
3. If a matter may be determined partly by pre-meeting electronic voting, the notice of the meeting must include a statement that the relevant motion may be amended by a further motion given at the meeting after the pre-meeting electronic voting takes place and that consequently the pre-meeting vote may have no effect.
4. A motion that is to be determined wholly by pre-meeting electronic voting may not be amended at the meeting for which the pre-meeting electronic voting is conducted.
5. A motion that is to be determined partly by pre-meeting electronic voting must not be amended at the meeting for which the pre-meeting electronic voting is conducted if the effect of the amendment is to change the subject matter of the original motion.
6. If a motion that is to be determined wholly or partly by pre-meeting electronic voting is amended at the meeting for which the pre-meeting electronic voting is conducted, the minutes of the meeting distributed to owners must be accompanied by notice of the change and a statement setting out the power to make a qualified request for a further meeting under section 19 of the Act.

Paul Chevrot: Organising an electronic-only EGM is very easy depending on various conditions:

• Has a motion to allow electronic voting already been approved?
• The size of the building
• The general profile of ownership (inv vs owner occupier, used to online or not…)
• The availability of the strata roll including email addresses

The main issue I can foresee here is that the secretary normally has the key role of facilitating this process. It will depend how formal/procedural the scheme/secretary are but there are ways around it of course.

Karina Heinz
P: 02 9389 9599
E: [email protected]
W: https://www.prostrata.com.au/

Paul Chevrot
Stratabox
T: 0405 024 262
E: [email protected]

This post appears in Strata News #307.

If you have a question about using electronic voting to fast track committee decisions or something to add to the article, leave a comment below.

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