Well, that was a Pandora’s Box…
Since publishing our response to a reader query about AGM procedures, we’ve had a big response. It’s a good reminder that there’s no such thing as a minor matter in strata: even if something seems relatively uncontroversial, strata is all about people’s homes and investments, which will always prompt strong responses.
By way of refresher, the reader’s query was about whether a procedural motion might be considered at an AGM, to enable those present to engage in discussion.
There’s no legislation about ‘general business’ at an AGM.
From a strictly legislative perspective, we responded that Queensland’s strata legislation does not give AGM voters an explicit right to discuss. It follows that there is also no legislation about things such as how long an AGM should go for, how long any voter (and we are using that term deliberately – at an AGM, there are ‘voters’, not ‘owners’) might have to speak to a topic and how long the chair ought to give voters to speak. There’s also no legislation about ‘general business’ at an AGM.
We know we’ve said before that an AGM should really only last 5 minutes: confirm quorum and voter eligibility, and tally ‘yes’, ‘no’ and ‘abstain’ votes (and perhaps a few minutes to check Zoom is working for everyone). We also know plenty of people do not like hearing that and strongly believe that, as the AGM is the central decision-making process for a body corporate, there should be time for discussion.
So how do those competing approaches get balanced?
Strata is not, of course, only and purely about what the legislation says. One reader has since brought to our attention the adjudicator’s comments in Shafston University Mansions_ [2013] QBCCMCmr_. A quick reminder that in Queensland, adjudicators in the Commissioner’s Office are quasi-judicial decision-makers who make legally-binding (and appealable) orders to resolve strata disputes. An extract of the relevant comments is below – there’s a bit here to take in, so we do recommend reading this, and the full order, carefully:
Chairing of the meeting
[131] The applicants make various allegations about the conduct of the chair, including interrupting and bullying owners, and that another person ‘co-chaired’ the meeting and made up rules. [132] The body corporate legislation does not refer to the conduct of debate on motions at a meeting. It simply specifies how voting will be conducted. However, in my view, the general principles of meeting procedure establish that debate must be allowed prior to voting:[31] “The purpose of debate is to allow members to state relevant facts and express their views on the business before the meeting. This is an essential part of the democratic process by which organisations reach decisions. Members should be allowed to share their information and to attempt to persuade their fellows of the rightness of their views.” [133] The need to allow debate does not mean a chair cannot control the conduct of debate, and indeed they should. A chair should give each voter present an opportunity to speak if they wish, ensure others do not interrupt, require speakers to keep to the point, and so on. [134] Providing it acts reasonably, a body corporate can validly pass a procedural motion at a general meeting to require the removal from the meeting of a person who is significantly disrupting. Given the applicants’ own evidence there would seem to be good reason to conclude that it was reasonable for the Body Corporate to decide that Blumke was excessively disrupting and delaying the AGM. The applicants have not satisfied me that there is any basis to determine that this motion was not reasonably passed. [135] In regard to time limits on speakers, given the number of motions, the duration of the meeting and the ongoing conflict, I see no reason why the Body Corporate could not limit debate by restricting the time allotted to each speaker[32]. [136] In regard to the allegations of bullying and intimidation of lot owners, I am simply not satisfied that this is at all evident from the applicants’ own transcript of the AGM. For example, while the chair asked some of the applicants not to interrupt, he equally asked others not to interrupt the applicants. While the chair sought to curtail discussion, it seems to me that this was only after opinions had been stated and little would be served by allowing endless debate. I do not suggest the chairmanship of the meeting was perfect – rather that the applicants have not demonstrated that it gave rise to any basis to invalidate the AGM. [137] The applicants claim that Committee member Claire Elliot co-chaired the AGM but have provided no objective evidence of this. Having read through the applicants’ own subjectively annotated “transcript” I find no indication that Elliot said or did anything that any lot owner or committee member was not fully entitled to say or do. I find no indication that she purported to conduct the meeting or set rules relating to the meeting. The transcript indicates to me that she in fact had comparatively little active involvement in the discussion at the meeting.We stress, adjudicators’ orders are not precedent and should be read as guidance only. Each case will be different. As will each adjudicator’s view, for that matter.
What’s the answer, then?
We stand behind what we said in our original response: namely, that discussion and communication amongst owners is most effective when done before the AGM. This is a standard lobbying approach, and at the very least, it gives an opportunity to find out what everyone might be thinking. If you are waiting for the day of the AGM to generate discussion, then we think that’s too late. Indeed, even waiting for notice of the AGM is too late. Discussion should be an ongoing action and not tied to a single decision-making event.
Equally, we can see and feel the frustration being expressed at not being heard. That is such an intense feeling when it happens. When limited or entirely omitted, discussion at an AGM is used to stifle legitimate debate and the airing of concerns. That is a surefire way to ensure disharmony and dispute at the scheme. Committees and strata managers need to be attuned to this, and we agree with the comments that the running of an AGM is not a top-down, ‘do as I say’ approach.
At the risk of adding yet more regulation to everyone’s strata experience, it may be time to consider legislative amendment to clarify that, yes, discussion at the AGM is expected, and that there may also be time for general business (noting that anything discussed in general business has no enforceability). This might be better than leaving it to the vagaries of a ‘procedural motion’. Moves to make training for committees compulsory – something which NSW is currently implementing and something I hope we see elsewhere, and soon – might be a step in ensuring AGMs are effectively run.
Non-legislative options might include seeking qualified advice if you run into an issue and can’t get a solution, or looking for third-party involvement, such as having someone attend the meeting for you, or from a committee point of view, someone who can work with the committee on good facilitation and conflict resolution techniques (at the risk of self-promotion, these are things Strata Solve does a lot).
Some reader comments raised concerns about poor behaviour and ‘bullying’. Let’s be clear on a couple of things. Firstly, while it is never great when someone feels they are targeted, there is no such thing as ‘bullying’ under strata legislation – so we really must take care when using terms that do not have a defined meaning in strata. Secondly, as much as strata legislation in Queensland (and elsewhere) regulates everything, including the kitchen sink, it simply cannot make people be nice and get along with others. Thirdly, the only person you have any control over is yourself: be clear in your mind that your conduct is appropriate, and then, if it’s safe and reasonable to do so, respectfully call it out in others when it doesn’t happen.
Running and participating in an AGM is, frankly, an art form. As is the case with any art form, you need to be constantly practising and refining it to be the most effective at it you can be. Take advantage of the myriad resources that LookUpStrata and others offer to assist you in that art form. Anything that can be done to make the AGM experience as meaningful as possible for as many people as possible has to be worth it.
This post appears in Strata News #784.
Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898
