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

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These lot owners from QLD are wondering about body corporate voting rules.

Jump directly to the QUESTION you are after:

• 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: 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:

1. 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)
2. the name of the owner of the lot;
• ie John & Mary Smith or if a Company ie Bright Lighting Pty Ltd
3. 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
4. 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
E: [email protected]

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
E: [email protected]

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
E: [email protected]

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
E: [email protected]

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
E: [email protected]

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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• QLD: No confidence motions, rights of veto and more

Chris Irons
E: [email protected]eslegal.com.au
Frank Higginson
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au

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