Question: When a committee member’s lot caused a defect, should they have to step aside from voting on the repairs, not just declare their interest?
What happens when the owner whose lot caused a defect sits on the committee, sometimes as treasurer or secretary, and votes on the very repairs affecting their own unit?
Should the legislation make it mandatory for any committee member with a direct financial interest in a defect decision to step aside, not just disclose their interest?
Answer: A committee member with a conflict of interest must disclose it and is not entitled to vote.
Under every Regulation Module in Queensland that provides for committee members, a committee member whose lot caused a defect, and who is voting on repairs to their own unit, is expected to stay out of the vote.
Section 66(1) of the Body Corporate and Community Management (Standard Module) Regulation 2020 (Qld) requires them to disclose their interest if it could impact on the ‘appropriate performance’ of the committee member’s duties in considering the issue. Section 66(2) then says they are ‘not entitled to vote on a motion involving the issue’.
So, the legislation expects the committee member to recuse themselves after they disclose their interest, because their vote simply won’t count.
In a case such as this, there’s little doubt that there is an ‘interest’ and that it is caught. In Gloria Bayside Apartments [2019] QBCCMCmr 45, the adjudicator said it ‘seems indisputable’ that a committee member has a direct personal interest in spending body corporate money on repairs to their own home. The body corporate wants the work kept within its responsibilities and done as cheaply as possible, while the committee member benefits from more extensive or better-quality work. In Gloria Bayside it didn’t matter that the member’s vote may not actually have been influenced. The possibility was enough.
Where the committee member’s lot caused the defect, the conflict is probably even sharper. The committee member has an obvious interest in who pays: whether the body corporate absorbs the cost, whether the body corporate tries to recover from the committee member, and whether the question of who caused the defect is looked at closely.
That puts the committee member on the opposite side to the body corporate, which adjudicators have treated as a clear conflict; see The Reserve [2019] QBCCMCmr 143. The recusal should therefore extend to each and every related motion; for example, the scope of works, the contractor, the cost, responsibility, and any recovery from the committee member.
Being Treasurer, Secretary or Chairperson makes no difference, and best practice is that the conflicted committee member declares their interest and leaves the meeting for the period the issue is under discussion. If the committee is discussing privileged legal advice relevant to the issue giving rise to the conflict, the committee member must leave, be made to leave, or the meeting must be adjourned (to another place and time without the conflicted member in attendance) so privilege is not waived.
If the committee member votes, whether they have declared their interest or not, their conflicted vote must be disregarded.
In practice, if the conflict is picked up in time, there is either no conflicted vote cast, or if cast, the chairperson has two options. First, the chairperson can choose not to record the votes as being cast at all, and declare the result based on the valid votes cast. The second option is to record the conflicted vote or votes as being for or against but also conflicted and thus not counted in the final result. This second option is what happened in Larnaca Court [2016] QBCCMCmr 369. In that case, the chairperson did record the invalid votes but did not count them when deciding the result of the motion.
If the conflict is not caught at the time, it can still be fixed, either by amending the minutes, passing a further resolution (whether committee or general meeting) or an adjudicator’s order (listed from simplest to most complex). For example, if counting the conflicted vote made no difference to the outcome, then correcting the issue via the minutes is an easy option. At the other end of the spectrum, if the conflicted vote was determinative and the resolution has started to be put into effect, an adjudicator’s order may be required to sort matters out (especially if innocent third parties are involved, such as service contractors).
If formal dispute resolution is required, such as an Adjudication Application, remember to take into account the three-month time limit.
It’s arguable that a mandatory requirement for a conflicted committee member to recuse themselves is an oversight and should be added into section 66 to make matters ‘black and white’. However, in practice there have been a lot of cases on conflicts. The law is pretty consistently applied and therefore (mostly!) clear already.
This post appears in the November 2026 edition of The QLD Strata Magazine.
Michael Kleinschmidt Bugden Allen E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280
