Question: As lot owners, the body corporate manager denied our AGM vote, changed our submitted motions without consent, and breached a referee order. What are the remedies?
We were recently denied our statutory right to vote at the AGM under the Building Units and Group Titles Act 1980 (BUGTA). Voting papers were not provided beforehand and arrived 18 days after the meeting, despite standing referee orders explicitly mandating proper issuance of all notices to our lot. Under Schedule 2, Part 1, clause 1(4), providing the ballot is a mandatory duty, and papers must arrive 7 days before the meeting.
Additionally, the body corporate manager unilaterally amended and consolidated 144 motions we submitted without our consent. We believe this violates the duty to act reasonably under section 2A of the 2022 BUGTA amendments and may constitute unconscionable conduct under section 21 of the Australian Consumer Law (the ACL).
We have initiated a dispute. What is the standard remedy when a body corporate manager’s failure to effect service renders an AGM procedurally void? Can a body corporate manager legally consolidate motions without owner approval, and what are the repercussions for breaching a prior referee order?
Answer: Each breach carries distinct consequences.
We will answer the three questions in the order you raised them.
Firstly, if a meeting is declared invalid because notice of the general meeting was not served on each proprietor at least 7 days before the meeting, an order of a referee may be sought to have the body corporate convene a further general meeting to reconsider the motions. However, a referee may not make this order if a general meeting is scheduled in the near future. In Canterbury & Westminster [2010] QBCCMCmr 165 it was found:
The Applicant requests that if the general meeting is found to be invalidly called for short notice that any owners who did not have sufficient notice should be allowed to submit a vote and those votes recorded as if they had received the notice in time.
I am of the view that this novel idea cannot stand. Owners must cast their votes before a general meeting commences, or at the general meeting, and the chairperson must declare the vote on each motion at the meeting.
In the alternative, he asks that another general meeting is ordered to consider the same motions as presented to the general meeting on 26th November 2009 to be held within 14 days of a date determined by the referee. No doubt he says this because of the difficulty of finding owners enthusiastic enough to requisition a second general meeting.
Mr Rich says that this would be an abuse of the requisitioning provision and be an unnecessary cost to the body corporate.
I am persuaded by the Applicant that there are several owners in the scheme who would like the opportunity of reviewing their committee. However, since I am advised that the annual general meeting will be held on 5th May 2010, that opportunity will be afforded to them, and there is now no point in ordering a general meeting before 5th May 2010.
In order to invalidate the general meeting on this basis, you will likely need to demonstrate that the votes of persons who did not receive the voting paper in time would have changed the outcome of the motions.
Secondly, referees have previously found that motions submitted by a lot owner should not be amended. In Duhig [2025] QBCCMCmr 52 it was found:
I further note some discussion about the inclusion of committee commentary on the applicant’s motions in the AGM notice. Nothing in the legislation entitles the submitter of a motion to submit explanatory material with their motion, or the committee to add commentary on it, but there is nothing to prevent it. However, care should be taken. An owner’s motion itself should not be altered.
The body corporate’s reasonableness obligations, and the ACL do not have bearing on the determination of this issue.
Thirdly, a failure to comply with an order of a referee can lead to the imposition of an initial penalty of $1,335 plus $334 for each day the order is contravened (up to the jurisdictional limit for the Magistrate’s Court). These amounts have been calculated on the basis that a penalty unit (subject to change) is currently set at $166.90.
It should be noted that this claim is actionable against the body corporate, not the body corporate manager.
This post appears in Strata News #793.
Holly Oddo Mahoneys E: hoddo@mahoneys.com.au P: 07 3007 3733