These lot owners from QLD are wondering about body corporate voting rules.
Jump directly to the QUESTION you are after:
- QUESTION: Is a Flying Minute/Vote Outside of Committee Meeting removing the rights of owners and occupiers from using common property valid?
- 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?
- 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?
- 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?
- 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?
- QUESTION: Would matters such as is the papers signed, or the Lot number indicated potentially affect the validity of the votes?
- 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?
- 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?
- 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?
- 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?
- 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?
- 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?
- QUESTION: We are looking for information about the body corporate voting rules for a committee at an AGM who was elected without counting votes.
- 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.
- 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?
- QUESTION: Can a Body Corporate Chairman tell other owners how to vote at the upcoming AGM? What are the body corporate voting rules here?
- QUESTION: A motion was changed by the incumbent – What are the Body corporate voting rules? What happens now?
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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: [email protected]
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: [email protected]
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: [email protected]
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
P: 0409 873 181
E: [email protected]
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.
This post appears in Strata News #380.
Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500
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: [email protected]
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: [email protected]
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
E: [email protected]
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: [email protected]
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: [email protected]
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
E: [email protected]
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
E: [email protected]
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
E: [email protected]
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
E: [email protected]
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
E: [email protected]
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
E: [email protected]
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
E: [email protected]
Have a question about body corporate voting rules or something to add to the article? Leave a comment below.
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Chris Irons
E: [email protected]
Frank Higginson
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au
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We are a Standard Module Scheme of only 4 lots with unequal contribution entitlements.
We held our AGM 3 days ago.
A motion to appoint a Body Corporate Manager was submitted by a lot owner prior to the voting papers being distributed. The owner also forwarded 2 proposals from Body Corporate Managers which were attached to the voting papers.
This Motion was the last item on the agenda as we had received 2 nominations for Executive Committee Positions and we also called for further nominations from the floor at the meeting. A Committee was not formed.
A motion to change to a Small Scheme Module with Form 19 and associated costs was also an agenda item.
This was voted 2 for and 2 against the motion. A poll was not called for as the owner who lodged the motion to appoint the Manager challenged the result of the vote and verbally attacked the meeting chair causing the meeting to descend into a shambles. The Chair suggested that the meeting be halted and rescheduled but this only aggravated the situation.
The same owner refused to vote (recorded as abstain in the minutes) on any other motion on the agenda by stating that even the statutory motions had been loaded to stop the appointment of a Body Corporate Manager and were unnecessary as the Body Corporate Manager would ‘sort all of that out’.
All in all the actions of this owner were disruptive and offensive and she stated without proof, that there had been financial fraud. She would not listen to any explanation offered by the secretary or treasurer as to how the proposed budget was derived and how the levies were calculated.
The meeting continued and some motions passed.
So, finally the last motion is tabled and she ducks out and comes back with 1 of the 2 proposed Body Corporate Managers. She had paid him to attend. This was a positive as it afforded the owners a chance to directly ask questions and assist in their decision.
The votes were 2 for and 2 against and as it was a special resolution failed the 2/3 majority needed.
She was extremely angry and stated that she considered the whole meeting to be void and would not accept the outcome of any of the votes.
N:B: This was the first meeting she had attended in her 9 years as an owner and had never previously returned a voting paper. As a courtesy for submitting a motion we let her choose the date for the AGM.
We need to call an EGM.
But as there is no committee how do we do that?
Who calls the EGM and distributes voting papers?
The motion to hold future meetings via email was passed.
What are the legislative requirements?
Thank you!
Suellen
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 x votes in the case for voting for Body Corporate Management rites, given you cant vote for this motion via proxy.
Hi Michelle
We have answered your question in the above article.
Hi Nikki,
A little clarification to my question about counting votes submitted by voting paper which Chris kindly answered.
My point about “validity of votes” went to simple matters such as, is the papers signed, or the Lot number indicated. I would have thought those were matters which could potentially affect the validity of the votes. Could Chris clarify those point please?
We responded to this question in the above Q&A.
An EGM was recently called by a small number of lot owners in order to table the sealing of a road that is not, and has never been, a designated access road for the estate. Voting papers were distributed to all lot owners as the funds required to complete the works were well above that which a committee is authorized to approve. Seems straightforward.
However, after the EGM was called, the agenda issued and electronic voting papers distributed to all lot owners, there was an 11th hour cancellation of the EGM by the same lot owners who had called it in the first instance. We have received confirmation that they attended a meeting with the Body Corporate Managers the day before the proposed EGM and were informed/indicated that their proposal had been unsuccessful…a ‘no’ vote was overwhelming. They then immediately cancelled the EGM.
As the legislation stands…had the EGM gone ahead and their motion been defeated, they would not have been able to call another EGM for 12 months. It appears that the cancellation was/is intended to ensure that they buy time, reassess their tactics and call another EGM when they have their next strategy planned. (This has been an ongoing process during the past 15 months.) It is an attempt by a small number of lot owners to spend body corporate funds on an issue that is not supported by the majority.
My concern is that the actions of the Body Corporate Managers, in disclosing the outcome of the electronic voting to those who called the EGM in the first place…the day before the EGM (giving them time and opportunity to once again manipulate the system), must surely be unethical? I would hope such action is actually illegal. Our Body Corporate Chairman did NOT agree to the cancellation when approached by the BC Managers.
The situation seems quite corrupt. I await your advice. Thank you.
Hi Melinda
We’ve received the following response from Frank Higginson, Hynes Legal:
In simple terms:-
1. EGM’s can be called as often as the committee or owners force. There is no 12 month limit to having them. In theory, you could have one a day!
2. Votes cast (not in a secret ballot) are a body corporate record, so owners are entitled to see who has voted what way before a meeting.
This will ultimately be decided by the votes.
Our AGM was held recently, the Strata Managers term was up for renewal and they submitted a quotation/proposal to continue as Strata Manager for 3 years for the meeting to consider, 3 years ago when they were appointed, at the end of the meeting, as the attendees were leaving, the Strata Manager said to the Chairman of the Committee, “Oh my appointment was only for 1 year do you want me to carry on”, to which the Chairman replyed, “yes make it for a futher 3 years”, no vote, no discussing on the matter, this was my first AGM and I did not know the rules and regulations, however I did realise during the meeting that the Chairman and the Strata Manager were very friendly and familiar towards each other, I had also become aware that for the appointment of companies to carry out work on the property, it always seemed to be companies that the Strata Manager submitted quotations who were awarded contracts. Local tradesmen have a name for her which I will not repeat, with many refusing to carry out work at properties with which she has any involvement.
There are numerous suspicious dealings which I am aware of, 2 very large contracts were approved, both with only 1 quote obtained, I queried why more quotations were not obtained for both at General Meetings and the answer for both was that there is no other company in the city that can carry out the work required, I voiced my disapproval but the contracts were awarded anyway.
It was my intention at the recent AGM, to adsvise the owners what I know about the Strata Manager and the decisions and appointments which I believe that they have made which are certainly not in the best interests of the owners, at the end of the AGM, the matter of repointment was tabled, I stated that I believe that the appointment of the Strata Manager was a matter to be discussed in the absence of the Strata Manager, to which the Strata Manager became very angry and said that I was not right and that she didn’t have to leave the meeting, she was subsequently reappointed for a term of 1 year.
Since the meeting I have sent to the Chairman the relevant document which states that if requested the Strata Manager is to leave a meeting whilst their appointment is discussed.
I believe that as she has mislead the meeting, her appointment should be revoked and another meeting to discuss the appointment of a Strata Manager be held.
Your response would be greatly appreciated.
In Relation to the Question above “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?” and Response “This would not breach the code of conduct in the way complained of but would more than likely invalidate the votes.” – could you please clarify if the response “would more than likely invalidate the votes.” refers only to whether the voting papers were passed back through the Letting Manager (which they were not) or whether the completion of the voting form by the Letting Manager, is perhaps going a step too far in terms of influencing owners whose properties are in the letting pool,, even though owners forwarded the signed form by email direct to the Body Corporate Manager?
Does a body Corporate Manager have to disclose to Committee what the outcome is when a Manager stated – they have sourced legal advice and a member of Body Corporate should get their own advice. This is with regard to a Manager of the Body corporate saying the Body corporate is responsible for payment to repairs in a private court yard.. when an Adjudicator has stated it is owner. The rest of the Committee are now arguing who is correct.. with thanks for feedback. Doris
Hi Doris
We’ve received the following response from Frank Higginson:
If a body corporate has obtained legal advice it may well be privileged meaning it does not need to be disclosed to all owners – and certainly not the owner about whom the advice may be about! If a body corporate manager has sought advice on their own account about an issue they definitely do not need to give that to the body corporate.
Re Dec 12 comment regarding Auditor… The Auditor appointed last year has provided an auditor’s report with the upcoming AGM agenda papers together with an engagement letter. The auditor put forward by our BC managers has nothing attached, only a motion to appoint them.. and the auditor chosen last year is not on there as a second choice.
Your question….did the committee have the opportunity to approve the agenda? I am not sure about this, but I do know they are in league with Caretaker Managers and the Strata managers and act on their behalf not the owners. We will be attempting to vote in a new committee at the AGM on 18 December… and get new BC managers as current managers are closely associated with the Caretaker managers..
Hi Jennifer
This response from Todd Garsden:
There are a lot of assumptions being made – and a lot of it is going to depend on the committee’s instructions which we won’t know if the poster isn’t on the committee.
Admin: Please note we can only offer general information. For further details, we recommend you contact a strata lawyer.
Yes, we have an engagement letter and fees from another auditor approved in November last year. The auditor on this year’s agenda is employed by the Strata Group we are trying to get rid of.
Further voting question – I just got an email from our Caretaker Managers telling me how to vote for both the committee, stating names (who are the current inactive ineffective committee that we are trying to change) and motion to change our current Body Corp Managers whom we are trying to get rid of. I find this highly inappropriate – are they allowed to do this?
We have our AGM coming up soon and are hoping to vote out our dodgy Body Corp managers whose contract is almost up. The committee voted for a certain auditor to do the books last year. We have just noticed that the BC managers have put in their own auditor with no choices.. What can we do to add the auditor we want, or can we vote NO but then hold a special meeting in the New Year to put in a motion for the auditor we want… Please help with this question.
Hi Jennifer
We’ve received the following reply from Todd Garsden, Hynes Legal:
Was there ever another auditor put forward by an owner or the committee which did not make it to the agenda and did the committee have the opportunity to approve the agenda?
Thank you Nikki and Hynes – every vote will count, I will pass that on to others who have nominated. Unfortunately our current committee is not doing its job properly and in fact mainly inactive, and a few of us are trying to get a new committee on board who will work on behalf of the owners and not be in cahoots with our current caretaker managers who are not performing well at all and in fact were taken to court for ripping of tenants in the complex, tenants won. We also aim to change our Strata managers… Big job, but hope we can pull it off.
Our Body Corp AGM is coming up in a few weeks. I have nominated to be on the Committee. Can I vote for myself on the ballot paper.. ?
Hi Jennifer
This response from Frank Higginson, Hynes Legal:
Yes
Nikki (Admin): Good for you!
We had our AGM last week. The meeting was chaired by the BCM. The BCM turned to the Chairperson and said “Do you want me to do it.” The Chairperson replied in the affirmative. No valid reason was given for this. At the beginning of the meeting the BCM advised that there were no votes mailed in. I pointed out that this was not true. I was told that I should have sent my email to the BCM’s email address as opposed to the address listed in the Agend documents. When it came to voting for the Treasurer and Committee Members, the BCM took some ballot forms from the Chairperson and Secretary, as well as going around asking people in attendance to indicate who they wanted to vote for. There was no show of hands. She did not disclose the number of votes for each candidate. This is a Body Corporate that consistently fails to comply with the BCCM and Standard Module. There were defects and irregularities in how the meeting was called.
We have received this question via email:
Someone has nominated for chair of bodycorporate. There were 2 nominations, and one withdraws after nominations have closed. Does the ballot still go ahead or does the remaining candidate become the chair?
Frank Higginson, Hynes Legal responds:
The remaining candidate gets it by default – the same as if no one had nominated against them.
Does the president of body corporate has the right to be in charge of the body corporate fund or should it be in the hands of someone outside the corporate area
Hi Reno Martin
We have received this reply from Frank Higginson, Hynes Legal:
Who controls the funds of the body corporate is ultimately a decision for the committee. Normally the professional body corporate manager engaged by the body corporate would also have some authority to deal with the accounts from a day to day payment perspective.
What is the situation when a body corporate chairperson proposes that the committee assess the current body corporate manager against other body corporate managers to determine if we continue with our current manager. The chairperson now has a change of heart and abstained from a committee vote to seek capability statements from three body corporate managers, including the current one and seek approval at the next AGM to undertake this process. Would the chairperson abstaining from this vote preclude him from further decisions and making statements at the AGM regarding this matter and would further motions/resolutions require him to abstain?
Hi Philip
This response from Frank Higginson, Hynes Legal:
Unless the chairman has an actual conflict of interest, his abstaining from the first discussion / vote would not preclude him from participating in later ones. The key question is whether he does have a conflict, and the only way to know is to ask him.
Has Kate McLean (refer above) received an answer?
January 25, 2019 at 3:00 pm
Kate McLean says
January 25, 2019 at 3:00 pm
Qld.: Can you please tell me what the procedures are for a body corporate committee to do when an owner corresponds to the committee regarding a number of different issues e.g. resident caretaker not watering gardens, parking issues, etc. Does the committee need to acknowledge the receipt of his issues and that the issues will be submitted at the next body corporate meeting? Is there a time frame?
Reply
Thank you
Hi John
Yes. Please see the reply comment from Frank Higginson: January 25, 2019 at 3:18 pm
What the committee has to do is act reasonably. They don’t have to consider everything every owner throws at them, but if the issue is of a nature that ignoring it would not be reasonable then they should deal with it. This is the grey area that lawyers love.
If the committee doesn’t do what you think it should it is always open to you to look to submit a motion at the next general meeting requiring them to do whatever it is you want them to – assuming of course that the action you want would be a lawful one. If a committee is directed at general meeting to do something, then it simply has to do it.
Qld.: Can you please tell me what the procedures are for a body corporate committee to do when an owner corresponds to the committee regarding a number of different issues e.g. resident caretaker not watering gardens, parking issues, etc. Does the committee need to acknowledge the receipt of his issues and that the issues will be submitted at the next body corporate meeting? Is there a time frame?