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
- The secretary of the owners corporation must ensure that all electronic ballot papers are stored securely until the counting of the votes begins.
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.
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Shane is a solicitor specialising in construction and strata law in New South Wales with a focus on dipsute resolution in the NSW Civil and Administrative Tribunal, he is the principal and director of Williamson Lawyers. Shane is unique in the strata community having started his career as a construction lawyer and moving into strata law to assist with demanding and complicated dipsutes involving building issues. Shane applies his experience to such matters as building defect claims, strata maintenance and upgrade dipsutes, loss of rent claims, unauthorised work claims, breaches of by-laws, applications for compulsory strata management, etc. Outside of litigation Shane can assist in the preparation of construction contracts, easments for access, building management agreements and other commonly required documents by strata schemes.
Shane is a regular contributor to LookUpStrata.
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