QLD: Q&A AGMs, Motions in Strata and the Obligation to Act

We regularly receive questions from QLD lot owners about strata AGM motions. Please Note: The new QLD strata legislation that commenced on the 1 March 2021 now refers to Motions with Alternatives as Same Issue Motions.

In March 2021, Todd Garsden from Mahoneys joined us for a QLD Webinar covering the New Regulation Modules. You can watch the webinar in full here: QLD WEBINAR: New Regulation Modules. Todd Garsden produced a handy, free one page list of new motions that you can do download here: New Motions For A Body Corporate.

Table of Contents:

• QUESTION: I put three motions forward but the background to the motions was not included. Is it the role of the Secretary to check the AGM papers include motions plus submitted information before they are circulated?
• QUESTION: Our BCM require 3 months to prepare for an AGM. All motions must be submitted before this cut off date. How can we ensure motions are relevant if quotes for maintenance are only valid for 30 days?
• QUESTION: If an owner submits a motion to the committee with explanatory notes, what must be shown on the committee meeting agenda?
• QUESTION: We’d like to replace all windows. What type of motion will be required and how many votes are needed for the motion to be passed?
• QUESTION: If motions are for the expenditure of body corporate funds, do they always need to include a quotes?
• QUESTION: Our Body Corporate Committee has three motions at our AGM that I believe are invalid. If they are not valid, what can I do about it?
• QUESTION: An owner has submitted a motion but the name on the motion is not the same as per the Titles office. Does this make the motion invalid?
• QUESTION: On sending motions into meetings, how many motions can be sent by the one owner per year? Where can I see the legislation detailing this?
• QUESTION: Is the Committee obliged to comply with a motion if compliance would contravene a by-law?
• QUESTION: Is there a reasonable time in which the committee should respond to lot owner motions for, e.g. a request to keep a pet. Six weeks appears to be unreasonably long.
• QUESTION: Is a motion submitted by a lot owner the same as a lot owner asking for a decision to be made by the committee?
• QUESTION: For part five engagement, does a special resolution require an open ballot? How does it work?
• QUESTION: How do a group of same issue motions look if you had various quotations and colour considerations for something like a roof repair?
• QUESTION: Our Strata Manager says that no one except the chair is allowed to speak at an AGM. Is this correct?
• QUESTION: Can an Explanatory Statement exceed a 300 word limit and do they have to be circulated to voters?
• QUESTION: What happens if prior to a meeting date when one or more of the owners who originally requested that the meeting occur withdraw their support? This would mean that there is no longer 25% support?
• QUESTION: Does my wife’s power of attorney to me allow me to submit motions at the AGM?
• ARTICLE: Group of same issue motions
• QUESTION: There are three decisions being made under one Motion. Is this an approved method of voting or should there be three Motions?
• QUESTION: Should a Chairperson forewarn the submitter that a motion is likely to be ruled out of order? This could save time and also allow the opportunity to amend the motion.
• QUESTION: At a committee meeting, a motion was put forward by the chairperson and it proceeded to a vote. The vote was deadlocked 3 v 3 and the chairperson then had a casting vote. Is this right?
• QUESTION: Who may move a motion to amend a motion? Can, for example, an owner present at the AGM, move a motion at the AGM to amend a motion put forward by the committee?
• QUESTION: A resident in our scheme would like to have General Business included as an item on our AGM Agenda. Is that permissible, or can only the motions included in the circulated Agenda be dealt with at an AGM?
• QUESTION: If a Motion is ‘passed’ at an AGM by Ordinary Resolution, is there any obligation by the Strata Committee or Body Corporate Manager to put it into action?
• QUESTION: Should strata AGM motions be ruled as Out of Order if they are based on and contain incorrect and misleading information?
• QUESTION: We have been advised that voting at body corporate AGM will not involve any debate. If a process removes speaking for or against a strata AGM motion, I am of the opinion this would be non-compliant with legislation.
• QUESTION: Is it OK for a Committee to recommend a preferred contractor in a Motion With Alternatives?
• QUESTION: Is it possible to speak in relation to a strata AGM motion if you are not a committee member?

Question: I put three motions forward but the background to the motions was not included. Is it the role of the Secretary to check the AGM papers include motions plus submitted information before they are circulated?

We have our AGM coming up next week and I put three motions forward but the background to the motions was not included when the information was sent out. Now owners won’t understand the rationale behind my motions being put forward and therefore probably not vote for them, which has put me at a disadvantage.

Is it the role of the Secretary to check the AGM papers include motions plus submitted information before they are circulated?

Answer: The onus is on the submitter.

As per the BCCM website, a motion must:

• be in writing
• include any necessary quotes and other documents
• be clear
• be enforceable

You can also include an explanatory note of up to 300 words.

In this case you mention ‘background information,’ but it is not clear how this was presented and it may have been omitted if not submitted in a valid format – that is, listed explicitly as an explanatory note.

The onus on doing this is on the submitter. Once a submission is received, the secretary is required to list it as presented. They are not responsible for formatting and organising owner’s motions as suggested. If they did so it implies they have some right of interpretation of the motions which they do not.

It sounds like there may be a bigger story here. In a positive situation you might have received help on your submission from the body corporate manager or even worked on it with the committee. Owners aren’t necessarily expected to be experts and help is usually available. Did anyone follow up with you for clarification? It’s not required, but if a scheme is generally harmonious you might expect a communication like this.

However, not all situations are positive and, for a range of reasons, you may not have the support of others in your body corporate. That can happen, but you need to be conscious of that and ensure that any submissions you make stay within the guidelines in order to ensure they are presented in the way you want.

As a next step you might ask your body corporate manager about why the paperwork went out the way it did and what you need to do moving forwards.

See the BCCM website for more on how to submit a motion: Queensland Government: Submitting motions

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #560.

Question: Our BCM require 3 months to prepare for an AGM. All motions must be submitted before this cut off date. How can we ensure motions are relevant if quotes for maintenance are only valid for 30 days?

Our BCM has stated that they require at least 3 months to prepare for an AGM, and have said that all motions must be submitted before the cut off date. How do we comply when quotes for any big maintenance issues in the complex are usually only valid for 30 days?

Also, our Budget meeting is scheduled for mid-March. Shouldn’t agenda and motions be submitted just following the budget meeting? Can we put forward a motion to alter the meeting dates appropriate to the issues within our complex?

Answer: Submit the outdated quotation and include provision in the motion in the event that the quotation increases at the time the motion is approved.

Each body corporate has its own financial year (distinct from the usual June/July financial years). This date is important for submitting motions and the timing of the AGM.

The legislation provides that:

1. In section 83 of the Standard Module:

   An annual general meeting, other than the first annual general meeting, must be called and held within 3 months after the end of each of the community titles scheme’s financial years.

2. In section 98(6) of the Standard Module:

   A motion submitted by a member of the body corporate may be included on the agenda for an annual general meeting only if the secretary receives the motion before the end of the body corporate’s financial year immediately preceding the meeting.

The 3 month period is usually used to its fullest extent as it does take time to prepare the AGM materials. Often this is because the manager is relying on third parties (such as accountants) to produce the required financial reports).

Although a lot owners submitted motion is restricted by the body corporate’s financial year date, the committee has the ability to include motions on the agenda up until the meeting notice is finalised. This may assist with the timing of quotes issue.

The timing issue of quotes has always been a difficult one. In most cases the best approach will be to submit the outdated quotation and include provision in the motion in the event that the quotation increases at the time the motion is approved.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #542.

Question: If an owner submits a motion to the committee with explanatory notes, what must be shown on the committee meeting agenda?

If an owner submits a motion to the committee with explanatory notes, what must be shown on the agenda for the committee meeting considering the motion? The full motion and explanatory notes or simply “Owners motion – Lot xx”?

What information should be provided in the minutes? We are a Standard Module.

Answer: The notice to call a committee meeting must include an agenda stating the substance of issues to be considered at the meeting.

An explanatory note for a committee motion is something that has existed only out of custom as opposed to general meetings which specifically reference the existence of an explanatory note in the legislation.

Agenda

The notice to call a committee meeting must include an agenda stating the substance of issues to be considered at the meeting. The substance does not need to list in full the motions and explanatory note, but the agenda must detail the subject to be covered at the committee meeting.

In Coronation Gardens [2007] QBCCMCmr353 the adjudicator relevantly provided:

“Fine detail is not required, but enough information for any lot owner to see that a subject in which he or she has an interest will be discussed eg. ‘Lot 12, application for pergola…”

Minutes

The committee must ensure that full and accurate minutes of its meeting are taken along with a record of motions.

The phrase full and accurate and record of motions is elaborated upon at section 71(6) of the Standard Module and includes the words of each motion voted on at the meeting.

Accordingly, there is no requirement to include an explanatory note – the requirement is limited to the words of the motion. However, if the committee chooses to include the explanatory note, it must be included in full.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in the December 2021 edition of The QLD Strata Magazine.

Question: We’d like to replace all windows. What type of motion will be required and how many votes are needed for the motion to be passed?

Our committee is working on a proposal to upgrade the exterior of the building by replacing all windows, which will incur a cost of several million dollars. There are 66 apartments. The work is NOT essential and window replacement for common use areas is already provided for in the Sinking Fund Forecast.

What type of motion will be required and how many votes are needed for the motion to be passed?

Answer: The type of approval required will depend on the cost of the works.

The type of approval required will depend on the cost of the works.

There are three improvement limits that apply in the standard and accommodation modules:

In this case, there are 66 lots so if the cost of the project exceeds $132,000, which you suggest it does, a special resolution at a general meeting would be required.

A special resolution requires that the motion is only passed if:

1. At least two-thirds of the votes cast are in favour of the motion
2. The number of votes against the motion is not more than 25 per cent of the total number of lots
3. The total contribution schedule lot entitlements of the votes against the motion is not more than 25 per cent of the total contribution schedule lot entitlements for all lots in the scheme.

All three conditions must be met for the motion to pass.

Depending on your entitlements and number of people attending the meeting, that may need some mathematical configuration to work out but that is the formula to follow. Your body corporate manager should be able to calculate these for you at the meeting – although sometimes this takes some time and careful checking.

You also ask how many votes would be required. A standard quorum requirement would be 25 per cent of owners, but plans have had the capacity to change this since March this year so you should check the exact number with your body corporate manager.

Check the BCCM website for more information on this subject: Improving common property and lots.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in the November 2021 edition of The QLD Strata Magazine.

Question: If motions are for the expenditure of body corporate funds, do they always need to include a quotes?

Our body corporate manager has, ahead of our AGM, issued a notice to all owners – REQUISITION FOR INCLUSION OF MOTION ON AGENDA FOR ANNUAL GENERAL MEETING. That notice includes a footnote stating: If the motion is considering the expenditure of body corporate funds, you MUST include the cost or provide quotes.

BCCMA (Accommodation Module) Regulation 2020

S.163 Quotes for major spending decided at general meeting states:

1. This section applies if—
   
   1. . . . . .
   2. the cost of giving effect to the proposal is more than the relevant limit for major spending for the community titles scheme.
2. The owner of each lot must be given copies of at least 2 quotations…

Our relevant limit for major spending is $394,500. Most owner motions are expected to involve spending well below the ‘relevant limit’.

MUST submitters of motions obtain quotes?

The question is posed because of our 789 lots, only about 10% of owners live on site. Investor owners live intrastate, interstate and in 20 countries overseas. Their ability to obtain quotes is, in most cases, simply not possible.

Answer: If a quotation wasn’t included, the motion may still be valid, but it may not properly or fully authorise the works to be carried out.

To properly approve works, sufficient details of the works need to be included. As this is always best achieved with the actual quotation relating to the works and a motion is out of order if the substance is not included in the agenda, it is always best practice to include a quotation.

If a quotation wasn’t included, the motion may still be valid, but it may not properly or fully authorise the works to be carried out.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #514.

Question: Our Body Corporate Committee has three motions at our AGM that I believe are invalid. If they are not valid, what can I do about it?

Our Body Corporate Committee has three motions at our AGM that I believe are not legal:

1. Any owner that doesn’t live in the building is not allowed to stand for the Committee.
2. Any owner that has a Breach is not allowed to stand for the Committee.
3. Use of proxies to appoint new committee.

Over the past 6 weeks, the BCC has issued nearly 40 breaches for trivial issues against all people wishing to stand against a useless and draconian committee.

Are the motions valid? If not, what can I do about it?

Answer: If you think these motions are invalid and must be ruled out of order, the onus is now on you to do something about it.

The power to rule a motion out of order sits with the chair at the general meeting and is provided for under section 98 of the Standard Module. For example, if a motion is unlawful or unenforceable, it must be ruled out of order.

I’m not going to say that any or all of the 3 motions you’ve presented are possibly out of order or not, because that’s for legal advice and/or an adjudicator to determine. What I will say is that the onus is now on you to do something about it if you think these motions are those which must be ruled out of order. If motions pass which you think should have been out of order then you can seek to challenge those through my former office [the Commissioner’s Office].

Having said that, given your comments about a ‘useless and draconian’ committee, it seems there’s a much bigger issue and set of conflicts at play here than just a set of possibly out of order motions. You are probably better off trying to address the root cause of that conflict rather than focus on individual issues. Remember, nothing will change at your body corporate unless someone initiates it to happen and there might be several options you can pursue to make life better at your scheme.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #513.

Question: An owner has submitted a motion but the name on the motion is not the same as per the Titles office. Does this make the motion invalid?

I am the chairperson of a BCC. We have an AGM coming up. Our Body Corporate Managers have received a motion from one of our Lot’s but the name on the motion is not the same as per the Qld Land Titles Registry. Does this make the motion invalid?

Answer: It depends on whether the motion has made its way onto the agenda.

It depends on whether the motion has made its way onto the agenda.

If the agenda has been finalised and sent with the motion included, it is arguably approved by the committee and now the property of the meeting such that it can only now be ruled out of order if it:

1. Would conflict with the Act, the regulation module, the by-laws, or a motion already voted on at the meeting;
2. Is unlawful or unenforceable for another reason; or
3. Does not include the substance of the motion in the agenda for the meeting.

If the agenda has not been finalised – the committee can reject the motion on the basis it was not submitted by a member of the body corporate. However, I would caution the committee on taking this approach if the difference between the name on the motion and the owner according to the titles office is a technical one. If it is the same person, who just goes by a different name, the committee should include the motion.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in the September 2021 edition of The QLD Strata Magazine.

Question: On sending motions into meetings, how many motions can be sent by the one owner per year? Where can I see the legislation detailing this?

Answer: Six in a rolling 12 month period

You’ve got six in a rolling 12 month period. So if you send six in March of 2021, you have to wait till April in 2022, before you can submit another one.

The body corporate can also accept extra submissions, but they don’t have to. So it’s really important, I suppose for an owner to either pace themselves or really think about which motions are important to themselves before they start submitting them to the committee.

It’s a rolling 12 month period, so you can space it out and do one every two months if you really wanted. I think a lot of thought should be put in before you start burning through your limit.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in the September 2021 edition of The QLD Strata Magazine.

Question: Is the Committee obliged to comply with a motion if compliance would contravene a by-law?

At our AGM the chairman held the view that a Committee motion should be ruled out of order although a majority of committee members disagreed with that view, as did the strata manager.

Nevertheless the chairperson felt obliged to put the motion to the AGM and the motion was resolved in the affirmative.

The motion was out of order as it contravened a by-law.

Is the Committee obliged to comply with the motion even though compliance would contravene a by-law? What alternative action should be taken?

Answer: It may be worthwhile confirming that the motion is actually invalid

If the body corporate passed a motion that was invalid it would be a matter of:

1. the committee choosing to ignore the motion and seeing if a lot owner challenged the committee’s inaction in the Commissioner’s Office (where if the motion was invalid, the application ought to be dismissed); or
2. the committee (or another lot owner) making its own application to declare the motion invalid.

The second option is the preferable approach as it means the adjudicator cannot criticise the committee for ignoring motions that were passed at a meeting (which is a risk with option 1).

It may be worthwhile confirming that the motion is actually invalid before the committee chooses either of the above options.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #493.

Question: Is there a reasonable time in which the committee should respond to lot owner motions for, e.g. a request to keep a pet. Six weeks appears to be unreasonably long.

The committee now has a maximum of six weeks in which to respond to a motion put by a lot owner and extended as needed. This can be seen as a standard time to respond. Is there a reasonable time in which the committee should respond in normal operational circumstances? For example, if a request to keep a pet is made, six weeks appears to be unreasonably long.

Also, could you please go over the 21 days as a ‘no vote’?

Answer: Committees can turn around decisions a lot quicker than six weeks, but the new legislation gives them six weeks to make the decision.

Committees can turn around decisions a lot quicker than six weeks, but the new legislation gives them six weeks to make the decision. If you were expecting an earlier decision, it’s going to be very hard to get an early decision if the committee does want to take six weeks. Ultimately, what your rights are is to go to the commissioner’s office and ask for a decision to be made earlier. I just can’t say an adjudicator saying within a period of less than six weeks, that the committee is being unreasonable by taking more than four weeks.

There’s a bit of balance here where a lot owner is getting a lot more out of these regulation models by setting a deadline. I think by saying we should be taking less time than what the deadline is, you’re probably not going to get that far with how it’s going to be interpreted. I think it’s going to be very hard for an owner to force a committee to take a time less than six weeks if the committee wants to take six weeks.

Concerning how the 21 days works, it is more of a drop dead date, as opposed to a no vote. If the committee makes the majority decision within those 21 days, and it’s absolutely an approved committee decision, it’s really if some committee members haven’t put their vote in – maybe we’ve only got two answers so far and we need four to get the majority resolution, it just means after those 21 days the committee’s decision is a ‘no’ against the motion. What that does, is opens it up to the owner to go and take further action down the track.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #493.

Question: Is a motion submitted by a lot owner the same as a lot owner asking for a decision to be made by the committee?

Is a motion submitted by a lot owner the same as a lot owner asking for a decision to be made by the committee? Can a motion be a question seeking clarification of the committee’s progress on implementation of a previous action agreed to at a committee meeting?

Answer: I can’t see a request for information or asking the committee for an update or just a general question as being a motion.

That’s a really good question, and I think it’s going to have to take a lot of clarity from both owners and community members about how these things are going to be treated.

I can’t see a request for information or asking the committee for an update or just a general question as being a motion. That is really just communications to be tabled and considered by the committee.

Perhaps out of an abundance of clarity, the owner should either say if they want to be a motion or say that they don’t want it to be in motion and then it can be treated in that way. Keeping in mind is that six weeks if you do want to have as a motion, but if it’s not a motion, you obviously don’t have a deadline, but you might not be using up your cap of how many motions you can submit within that rolling 12 month period.

It’s not really up to the committee to determine whether or not your communication should amount to emotion or shouldn’t. It’s really, whether it is a motion or isn’t and I think asking a question wouldn’t amount to a motions, it’s just communications.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #492.

Question: For part five engagement, does a special resolution require an open ballot? How does it work?

Answer: The new changes allow the body corporate to put a motion on the agenda to remove the requirement for a secret ballot and allow it to become an open ballot.

For a part five engagement, if the body corporate hasn’t done anything it needs a secret ballot at the moment. This is where you engage a returning officer to count all the votes, and they’re all done anonymously. What the new changes have done is they’ve allowed the body corporate to put a motion on the agenda in advance of that taking place to remove the requirement for a secret ballot and allow it to become an open ballot.

In the next 12 months is when you’ll see a number of these threshold motions go on to flick the switch on something like that happening, and it’s really the general meeting after the next one, where you can actually see some of these changes take effect.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #490.

Question: How do a group of same issue motions look if you had various quotations and colour considerations for something like a roof repair?

We would be interested in how a group of same issue motions would look if you had various quotations and colour considerations for something like a roof repair.

For example, we have two quotations for a roof replacement as the cost is over $10,000 for colorbond roofing. We have one quotation for roof repair of around $5000. We have two quotations for roof replacement of the same product, which was an existing roof tile and that’s for $15,000 (this would be the same colour as the existing). Then we have two colour options if they go for the colorbond roofing. How would be we represent these as a group of same issue motions?

Answer: same issue motion allow the body corporate to give flexibility to a vote on particular issues without the conflict that can sometimes arise with motions with alternatives.

Really good question, and I think this is a good example of the practical help that a same issue motion set can provide because it really allows the body corporate to give the flexibility to vote on particular issues without the conflict that can sometimes arise with motions with alternatives. It really is a very simple way of achieving it, but you don’t have to worry about with motions alternatives, where essentially, you put all the motions for each option in the agenda, group them together, so that become a same issue motion, and then run through the process I briefly went through before.

You’ve got your two quotations there, because the cost is over $10,000 so that would really have contractor A and contractor B, but the good thing here is because you’re also looking at different colour options, you really have four different motions there that you want to put forward:

• Contractor A, colour A
• Contractor B, Colour B
• Then all the other combinations that can come from that.

Owners then have the ability to vote for which ones they’re okay with and which ones they’re not okay with. Then when you run through that process of the same issue motions you’re going to come up with essentially what’s the fairest result based on owner views for ‘yes’ and ‘no’ so it really brings in the ‘no’ vote quite well.

Short version is: put through all the different options that can come out and then leave it to owners to vote ”yes’ or ‘no’ for the ones they like or don’t like and then if you follow the process, you’ll get the right outcomes.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in the June 2021 edition of The QLD Strata Magazine.

Question: Our Strata Manager says that no one except the chair is allowed to speak at an AGM. Is this correct?

AGM Our Strata Manager says that no one except the chair is allowed to speak at an AGM.

I believe, in accordance with meeting procedures that a Motion is read out by the mover of the motion who is then allowed to speak for the motion. The chair should then ask if there are any owners who wish to speak for or against the motion.

Is this correct?

Answer: In this case, the supposition that only the Chair may speak at a meeting is incorrect. However, it is also not correct that the chair has to allow owners to speak for and against a motion.

The legislation does not stipulate a template by which body corporate meetings should be conducted and as a result there can be quite a bit of difference in their conduct from scheme to scheme and meeting to meeting.

In this case, the supposition that only the Chair may speak at a meeting is incorrect. For example, owners may request that motions be amended and propose that amendment, they are allowed to request that motions be ruled out of order.

However, it is also not correct that the chair has to allow owners to speak for and against a motion. Ultimately, the main purpose of a meeting is to count votes not opinions and the Chair needs to create the circumstances under which that can happen.

Practically, most plans need to reach a mid-point between these positions. If a Chair doesn’t give owners reasonable opportunity to express themselves then the likelihood is that there will be more disgruntled owners with more complaints, legal action and so on. The Chair may also find themselves unpopular when seeking reelection – if that is a concern. If owners don’t feel that they are being given the chance to discuss motions they may simply vote against them and that can impact the capacity of the body corporate to function. What would happen if everyone voted against the motions to collect levies because the chair hadn’t allowed any opportunity for discussion on the matter?

Equally, it is reasonable for a chair to set limits as to how a meeting can be conducted and the capacity of owners to express themselves. This can mean requiring that owners maintain decorum at a meeting, that when they address the meeting they keep to the matter at hand or limiting the amount of time an individual has to speak on a matter. There is little benefit from meetings that ramble, are hostile or in which there is no significant debate beyond people making sure they are heard.

It can be a tough job, but in well-functioning schemes the Chair tends to find that balance between letting people be heard and moving matters forward.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in the March 2021 edition of The QLD Strata Magazine.

Question: Can an Explanatory Statement exceed a 300 word limit and do they have to be circulated to voters?

An owner has obtained the required 25% of owners to call an EGM about a particular issue. The meeting date has been set.

The motions to be considered have been circulated. The legislation states that the information provided to voters can be accompanied by an Explanatory Statement as long as it is no longer than 300 words. The statement has been provided but it includes a link to an attachment that is itself more than 500 words.

Is the attachment part of the 300 word limit and does it have to be circulated to voters?

Answer: Word limits in any context are sometimes tough to achieve but they are usually there for a reason and really, 300 words isn’t too onerous to comply with in my view.

This is a very good question! On the one hand, it can be argued that the note is under 300 words and that the link is merely an appendix or optional bit of extra reading. On the other hand, if by clicking on the link you get to read the actual ‘explanation’ of the motion, then surely that’s the note and it needs to be under 300 words.

I can’t, based on my rudimentary search, see any adjudicator’s orders on this specific topic, although you may wish to undertake a more fulsome search at www.austlii.edu.au. Ultimately, in the absence of any definitive legislation or ruling, the committee will need to make a decision based upon what is reasonable in this case. It might, for example, be reasonable to go back to the submitter, drawing their attention to the word limit and asking them to redraft their explanatory note to comply with that and without using the link. If they decline to do so then it’s decision for the chairperson as to whether that motion gets ruled out of order.

Let’s think of this another way: the point of an explanatory note and its word length is so that voters who otherwise know little or nothing about the motion are given a succinct and clear overview of it. That then helps them cast their vote and is the fairest way of having motions considered. Does your situation allow for that? Is it reasonable to ask voters to click on a link to get that overview? My gut feel – and this isn’t legal advice, of course – is that it isn’t. Word limits in any context are sometimes tough to achieve but they are usually there for a reason and really, 300 words isn’t too onerous to comply with, in my view.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in the March 2021 edition of The QLD Strata Magazine.

Question: What happens if prior to a meeting date when one or more of the owners who originally requested that the meeting occur withdraw their support? This would mean that there is no longer 25% support?

Residents have submitted the required 25% of owners necessary to call an EGM. The date and venue have been determined and necessary papers including motions to be considered forwarded to owners.

What happens if prior to the meeting date when one or more of the owners who originally requested that the meeting occur withdraw their support? This would mean that there is no longer 25% support. Does the 25% requirement only apply to calling the meeting? Does the meeting still occur or is it now void and not required?

Answer: Once the meeting is called an owner withdrawing their support for the motion has no effect on the meeting.

Once the meeting is called an owner withdrawing their support for the motion has no effect on the meeting.

If the withdrawal took place before the meeting was called and the 25% was no longer reached the obligation on the committee to call the meeting would no longer exist (but the committee could still choose to call a meeting).

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #456.

Question: Does my wife’s power of attorney to me allow me to submit motions at the AGM?

My wife is the owner of our Lot as we are not joint owners and therefore I have been classified as an occupier. The body corporate has said that only owners can submit motions for the AGM.

My wife has issued to me a general power of attorney which has been lodged with and recorded by the body corporate the wording of which is:

-“To act for me for all obligations, requirements and privileges I have as an owner under the BCCM ACT QLD 1997 and the BCCM Accommodation Module Regulation 2008. To make all decisions and have all interactions on my behalf in all matters pertaining to Lot [XX lot number] within [the body corporate by name] and with [the body corporate by name] committee”.

My question is does my wife’s power of attorney to me allow me to submit motions at the AGM?

Answer: In simple terms – yes.

In simple terms – yes.

That allows you to act as if you were your wife with respect to the body corporate. You just need to make sure notice of the appointment has been formally given to the body corporate to allow you to do so.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #431.

Article: Group of same issue motions

Current regulations that apply to motions with alternatives, or motions dealing with the same issue, have caused some contention amongst body corporate residents. In view of this, it may come as welcome news that the provisions on motions with alternatives have been removed from the new regulations that will commence on 1 March 2021.

Instead, two or more motions that propose alternative ways of dealing with the same issue will now be categorised – on the agenda and in the voting papers – as a ‘group of same-issue motions’.

Under current regulations, where there are motions dealing with the same issue, a body corporate’s meeting agenda and voting papers are required to include firstly, the motion submitted by the body corporate committee that identifies the issue to be dealt with, and secondly, a list of the alternative motions received by the body corporate proposing different or alternative action in relation to the issue. If one of the alternatives requires a special resolution to pass under the regulations, all alternatives must meet that higher threshold.

Feedback from bodies corporate has been that, in some instances, a higher-threshold alternative may be submitted strategically for the purpose of making it more difficult for other alternative motions to pass, by raising the threshold that is required. This, coupled with the fact that owners are only able to vote for the actual motion plus one of the alternatives – or against the motion entirely – has meant that the existing arrangements do not always provide the fairest indication of group opinion.

The aim of the “group of same-issue motions” provisions in the new regulations is to facilitate – as far as practicably possible – the success of the most popular motion in the group and the strengthening of owners’ voting rights. Under the new provisions, owners will now be able to vote for or against any or all motions in the group, or abstain from voting on any or all of the motions. This is achieved by providing a two-step process for dealing with a group of same-issue motions.

Step 1: Identify the qualifying motions

Each of the motions in the group of same-issue motions will have a particular resolution type that must be satisfied for that motion to be passed. This means that there will be a mixture of different motions that may have different resolution types within the one group. While some of the motions may only require an ordinary resolution, others may require a special resolution, or a resolution without dissent.

A motion that receives the required number of votes to pass is a ‘qualifying motion’.

Step 2: Identify the successful qualifying motion

If there is only one qualifying motion out of the group, that motion will automatically be the successful motion.

If there are no qualifying motions in the group, there is no successful motion.

If there are multiple qualifying motions, the qualifying motion with the highest number of votes in its favour will be the successful motion and the body corporate’s decision.

So, how do you break a tie when multiple qualifying motions receive an equal highest number of votes in favour? Of these contenders, the one that received the least votes against it will be the successful motion.

The question then remains – what about the situation where there are multiple qualifying motions with equal votes in their favour and equal votes against? The new regulations provide that a tie of this kind will be resolved by chance. Whether this involves pulling the motions out of a hat or drawing straws is up to the owners at the general meeting to decide.

A group of same-issue motions in practice

Now, consider the scenario where a secretary receives motions from three lot owners proposing different ways to address the body corporate’s boundary fence, which is falling apart.

Broken Boundary Fence

ORIGINAL MOTION 1: To replace the boundary fence with a higher quality colorbond fence at a cost of X (special resolution).

ORIGINAL MOTION 2: To replace the wooden boundary fence with a similar wooden boundary fence at a cost of Y (ordinary resolution).

ORIGINAL MOTION 3: To repair the damage to the broken boundary fence at a cost of Z (ordinary resolution).

Original motion 1 receives 17 votes in its favour, 1 vote against and satisfies the requirements of a special resolution. Original motion 2 receives 17 votes in its favour, 5 votes against and satisfies the requirements of an ordinary resolution. Original motion 3 receives 4 votes in its favour, 10 votes against and does not meet the threshold for an ordinary resolution.

As original motion 3 did not satisfy the requirements of an ordinary resolution, it is out of the running. As both original motions 1 and 2 satisfy the requirements for their resolution type, they are both qualifying motions.

The next step is to work out which of the qualifying motions 1 and 2 has the most votes in its favour. As both qualifying motions received an equal highest number of votes, we must then look at the number of votes against. Original motion 1 is the successful motion, as it received the least number of votes against it.

Procedural requirements

It is worth noting that, as well as a having a group title, a group of same-issue motions should be listed on the voting papers in descending order, starting with the higher threshold resolutions. The order would therefore be as follows:

• Motions requiring resolution without dissent
• Motions requiring a special resolution
• Motions requiring a majority resolution
• Motions requiring an ordinary resolution

Where the voting paper includes a group of same-issue motions, an explanatory schedule must accompany the voting paper. Section 90 of the new Standard Module contains an explanatory schedule checklist that should be followed for a group of same-issue motions. Importantly, the checklist requires that the explanatory schedule should include an explanatory note that provides general direction on voting rights, counting of votes and qualifying motions. A thorough example of this kind of explanatory note has been provided in section 90 as a guide.

At first glance, the new provisions appear harder to grasp due to the number of factors involved. On unpacking the different elements, however, the concept is surprisingly simple. It is our hope that this article has provided some clarity on a topic that may otherwise seem daunting.

Michelle Scott
Information Service Freecall 1800 060 119
Commissioner for Body Corporate and Community Management

This post appears in Strata News #421.

Question: There are three decisions being made under one Motion. Is this an approved method of voting or should there be three Motions?

Question 1:

Our Community Titles Scheme consists of 75 Lots. The most recent Management and Letting Agreements lapsed due to the Manager failing to take up options on time.

Our Committee and the Manager have submitted motions, to be decided by secret ballot, at the upcoming AGM relating to the proposed new ‘Agreements’. The motion put forward, with two alternatives, lists both the proposed Caretaking Agreement and the Letting Agreement as well as listing a nominated person to be the ‘approved person’ under both Agreements.

My view is that there are three decisions being made under one Motion. Is this an approved method of voting or should there be three Motions?

Question 2:

Our Committee called an EGM to cover two Motions.

The first was straight forward but the second one covered two completely different matters yet we were expected to give a YES or NO answer to it. This was impossible as I (along with other owners) wanted to vote YES for the first matter but NO for the second. The first matter was to add a clause to the Caretaking Agreement, the second was to delete part of a clause in the Letting Agreement.

Also, they did not quote the clause that was to be deleted, just giving the number of the clause in the Agreement, they wanted to be deleted so unless you checked this Agreement you did not know what you were voting for/against.

A number of owners wrote to our Strata Managers voicing our concerns with this but we were fobbed off and the EGM went ahead without any owners being able to attend because of the COVID 19 situation. We believe it cannot be right to be forced to vote on two separate issues with only one voting choice. Are we Correct?

Answer: Both of these queries are essentially about motions with alternatives.

Both of these queries are essentially about motions with alternatives. Section 72 of the Standard Module (equivalent provisions of other Regulation Modules) provides for what a motion with alternatives is and how it should be treated. Of note is section 72(1) which states:

72 Motion with alternatives

1. This section applies if 2 or more motions (the “original motions” ) proposing alternative ways of dealing with the same issue are submitted, under section 69 , as motions for consideration at a general meeting of the body corporate.
   Example—
   The secretary of the body corporate receives motions from 3 owners of lots proposing the engagement of a person as a body corporate manager. Each motion proposes a different person.

The legislation doesn’t define what ‘the same issue’ is. Both of these queries are effectively disputing how ‘the same issue’ has been applied in each case and as such, this may require dispute resolution through the Commissioner’s Office if you can’t resolve the issues yourselves. Bear in mind you’ll need to provide grounds to back up your argument and all owners and the committee will be invited to ‘have their say’ as well. In other words, simply because you don’t agree with how these instances have been treated doesn’t necessarily mean they were wrong.

You may also need to seek legal advice.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #375.

UPDATE Please note: the new QLD strata legislation due out at the end of March 2021, refers to Motions with Alternatives as Same Issue Motions.

Question: Should a Chairperson forewarn the submitter that a motion is likely to be ruled out of order? This could save time and also allow the opportunity to amend the motion.

Body corporate legislation makes provision for motions to be ruled ‘Out of order’ if:

• the motion, if carried, would conflict with the legislation or the body corporate by-laws
• the motion, if carried, would conflict with another motion already voted on at the meeting
• the motion, if carried, would be unlawful or unenforceable for another reason
• the substance of the motion was not included on the agenda for the meeting.

Is there any provision, actual or implied, which imposes an obligation on the chairperson to forewarn the proposer of a motion that, in the form submitted, it is likely to be ruled out of order and afford the proposer an opportunity to amend the motion? To say nothing prior to the actual meeting seems likely to waste a lot of time an effort and consideration of a matter merely because of a mere technicality?

Answer: There’s no obligation per se. That said, what you are suggesting makes complete sense.

Chris Irons

There’s no obligation per se. That said, what you are suggesting makes complete sense. If a motion is received which is clearly going to be ruled out of order, there’s absolutely nothing stopping the chairperson or body corporate manager from calling the submitter and having an informal chat along the lines of ‘look, this one will not make the cut, for these reasons, so did you want to continue with it or did you want to withdraw it and have a think about either rewording or holding off?’.

This applies to any motion submitted which on the face of it looks a bit problematic. It can actually serve an educational purpose to do this and as you say, can save an awful lot of time, money, and heartache.

All that said, be prepared for the submitted to tell you in no uncertain terms they will not withdraw. It’s their motion, after all.

Frank Higginson

And if I was to put my ‘being a difficult lawyer’ hat on, I would say that if the committee was against the motion then it would be far from unheard of for the chairperson to simply ambush them on the day and rule it out of order without telling their proposer…..

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #366.

Question: At a committee meeting, a motion was put forward by the chairperson and it proceeded to a vote. The vote was deadlocked 3 v 3 and the chairperson then had a casting vote. Is this right?

At a committee meeting, a motion was put forward by the chairperson and it proceeded to a vote even after discussion of the motion being out of order and duly noted by the strata manager. Is this motion effective?

The vote was deadlocked 3 v 3 and the chairperson then had a casting vote, which was essentially not to enforce a Referee’s order and not to enforce the bylaws.

Subsequently the committee was presented with a flying minute to vote on the same issue and the result was to overturn the previous motion 4 v 2.

At this stage we presume that the chairperson voted against the motion, along with the Committee person who has a conflict of interest and chose to vote despite advice from the strata manager.

Does the flying minute override the previous committee meeting vote?

Answer: There are no casting votes at committee level.

There are no casting votes at committee level.

3 all means the motion is not passed.

However, the committee can change their mind afterwards too. Just because a vote was defeated first time around doesn’t mean it cannot be reconsidered by the committee again and voted differently later.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #326.

Question: Who may move a motion to amend a motion? Can, for example, an owner present at the AGM, move a motion at the AGM to amend a motion put forward by the committee?

Answer: Section 94(2): ‘… an amendment can not be made that changes the subject matter of the motion’.

From a purely legislative point of view, section 94 of the Standard Module (and equivalent sections of the other Modules) provides for the amendment of a motion at a general meeting (GM). There are some details about how that is done, although the most important part is section 94(2), which provides that ‘… an amendment can not be made that changes the subject matter of the motion’.

The legislation doesn’t define ‘subject matter’. That said, I think you can quite clearly see the section is not intending that a motion gets amended at a GM to the extent that it changes what the motion is seeking to achieve. Looked at another way, the section is providing the body corporate the ability to make an amendment that is procedural or minor in nature.

And really, that’s how it should be and what this section (and the question) does is highlight just why the legislation puts so may prescriptive timeframes and processes about GMs and motions.

All members of the body corporate need an equal opportunity to receive the agenda, in advance and to have time to absorb it and consider their options. A lot owner may, for example, on receipt of an agenda with motions want to take the time to research the motion or indeed, seek legal advice about it.

It’s particularly necessary to allow time in advance for people voting by ballot paper (or electronically, if and when that happens). I know it is commonplace for owners and committees to ask about whether motions can be tabled from the floor at a GM and they are sometimes miffed when told they can’t. Hopefully, this section and question emphasises why that is the case.

You cannot simply throw up new things or significant changes at a meeting and expect everyone to be comfortable voting on it there and then. That’s not how body corporate decision making happens.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #320.

Question: A resident in our scheme would like to have General Business included as an item on our AGM Agenda. Is that permissible, or can only the motions included in the circulated Agenda be dealt with at an AGM?

A resident in our scheme would like to have General Business included as an item on our AGM Agenda. Is that permissible, or can only the motions included in the circulated Agenda be dealt with at an AGM?

Are there any circumstances where an item raised at an AGM that is not on the circulated Agenda may be voted on other than, for example, a procedural motion?

Personally I don’t have any objection to this idea as a means of giving owners a chance to be heard, but I would be glad to receive advice on both its legality and how it would work in practice if it is allowed.

Answer: There is no such thing as general business at an AGM. If the motion is not on the agenda, it cannot be voted on.

There is no such thing as general business at an AGM. If the motion is not on the agenda, it cannot be voted on. This is because the legislation allows people to cast votes beforehand to exercise their rights which then removes the need for them to come to the meeting. Therefore, if motions could come from the floor on the ay those owners would be disenfranchised by not being able to have their say.

There is no reason people cannot have a natter after the meeting, but from my end, that is best done when the meeting has officially closed, the new committee is in place, and then general items can be canvassed. Nothing discussed there will be binding though like a vote at the meeting itself.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #319.

Question: If a Motion is ‘passed’ at an AGM by Ordinary Resolution, is there any obligation by the Strata Committee or Body Corporate Manager to put it into action?

If a Motion is ‘passed’ at an AGM by Ordinary Resolution, is there any obligation by the Strata Committee or Body Corporate Manager to put it into action? E.g. The Body Corporate authorise the Body Corporate Manager to arrange a gutter clean and roof inspection from a suitably qualified contractor – Motion Passed by Ordinary Resolution.

Answer: They should do what the motion directed. It is as simple as that.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #295.

Question: Should strata AGM motions be ruled as Out of Order if they are based on and contain incorrect and misleading information?

Should a motion proposed for an upcoming AGM be ruled as Out of Order if it is based on and contains incorrect and misleading information?

As most of our unitholders live out of state, strata AGM motions are voted by mail ahead of the actual meeting so there is little opportunity for open discussion.

Answer: Generally it would be considered fair and reasonable for owners to be given the opportunity to comment on strata AGM motions prior to voting.

The Module says

48 Power of person chairing meeting to rule motion out of order [SM, s 81]

1. The person chairing a general meeting of the body corporate must rule a motion out of order if—
   1. the motion, if carried, would—
      
      1. conflict with the Act, this regulation or the by-laws, or a motion already voted on at the meeting; or
      2. be unlawful or unenforceable for another reason; or
   2. except for a procedural motion for the conduct of the meeting, or a motion to correct minutes—the substance of the motion was not included in the agenda for the meeting.

2. The person chairing the meeting must, when ruling a motion out of order—
   
   1. give reasons for the ruling; and
   2. for a ruling given under subsection (1) (a) —state how the ruling may be reversed by the persons present and entitled to vote on the issue.

3. The persons present and entitled to vote may reverse a ruling given under subsection (1) (a) by passing an ordinary resolution disagreeing with the ruling.
4. The reasons given by the person chairing the meeting for ruling a motion out of order must be recorded in the minutes of the meeting.

That sets out a step by step process, but the key is what we have highlighted in bold above. What is incorrect or misleading are matters of opinion and there may, or maybe not, be reasons to rule a motion out of order if that is the case – but only by reference back to one of the reasons we have bolded above.

These ones really do hinge on the actual working of the motion.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #217

Question: We have been advised that voting at body corporate AGM will not involve any debate. If a process removes speaking for or against a strata AGM motion, I am of the opinion this would be non-compliant with legislation.

Our AGM is to be held in late January 2018. Minutes from the last (Budget) meeting has included a note that:

“The Committee wish to advise that unlike previous years, there will not be a debate process at the Annual General Meeting.

Further to the above, the Committee request for you to complete your voting paper and return to “the Strata Manager” prior to the date of the meeting …….”

As such a process removes speaking for or against a strata AGM motion, I am of the opinion this would be non-compliant with legislation. I cannot see the purpose of attending a meeting where the voting would be counted prior to the meeting by the Strata Manager and those attending simply told the results.

Answer: “the general principles of meeting procedure establish that debate must be allowed prior to voting.”

Adjudicator Rosemann made these comments in Pacific Mansions [2012] QBCCMCmr 167 (original footnotes removed):

[44] The body corporate legislation does not specifically 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. A widely recognised authority on Australian meeting procedures says:

“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.”

[45] The fact that some voters are not present to participate in debate is immaterial. The persons who are present at the meeting are entitled to withdraw their written vote, and substitute an alternative personal vote, at any time before the result of the motion is declared. The fact that a chair believed no owner present would change their vote is no basis to prevent debate.

[46] 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, ensure others do not interrupt, require speakers to keep to the point, and so on. Debate could be limited by restricting the time allotted to each speaker. However, I consider this would require the agreement of the meeting, through a procedural motion that was proposed, voted on, passed and minuted. The chair or committee could not unilaterally impose such a restriction.

I would add to Ms Rosemann’s helpful explanation that the content of the debate does not have to be included in the minutes of the general meeting, even though the participants may feel strongly about their comments being “put on the record”. Recording what is said in such debates is not required by the legislation, and may turn minutes into a small novel.

Jason Carlson
Grace Lawyers
E: [email protected]

This post appears in Strata News #175.

Question: Is it OK for a Committee to recommend a preferred contractor in a Motion With Alternatives?

Is it normally alright for a Committee to recommend a preferred contractor in a Motion With Alternatives eg about painting our complex?

Our Committee is submitting a Committee Motion to our AGM about the painting of our complex. This will involve a motion with alternatives. Can our Committee include, either in the Motion or the Explanatory Schedule, our recommendation as to which of the 3 painters we prefer, especially if the preferred contractor is not the cheapest?

Answer: The committee has an absolute right to make a recommendation

The committee has an absolute right to make a recommendation. As has been held in the District Court:-

Obviously, any note put forward by the submitter of the motion is going to present an argument in favour of the motion. I cannot see anything in the regulation which requires the submitter of the motion to include in the explanatory note arguments against the motion as well as arguments in favour of it, so as to be balanced, and such a proposition strikes me as not supported by anything in the legislation or the general law.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #118.

Question: Is it possible to speak in relation to a strata AGM motion if you are not a committee member?

Is it possible to speak in relation to a motion being put to the AGM if you are not a committee member?

In that, most owners don’t attend the AGM and have the opportunity to vote electronically or by post, it would be necessary for my remarks to be distributed to all owners prior to their voting if I am endeavouring to put new material before them with the intent of persuading them to vote in a certain fashion.

Answer: Generally it would be considered fair and reasonable for owners to be given the opportunity to comment on strata AGM motions prior to voting.

Generally, it would be considered fair and reasonable for owners to be given the opportunity to comment on a motion at an AGM prior to voting. However, your question relating to circulating information prior to the AGM, so that owner voting electronically or by voting paper still receive the information, depends on the circumstances.

There are two scenarios where an owner may want to provide other owners with additional information in relation to a motion:

1. If the owner has submitted the motion themselves
   
   If an owner has submitted a motion for inclusion on an AGM agenda, they may submit an explanatory note, up to 300 words. This explanatory note must be sent to owners with the voting paper for a general meeting. (See Section 73 of the Body Corporate and Community Management (Standard Module)). Your Strata Manager or an independent consultant will be able to help you with wording an explanatory note.
2. If the owner wishes to provide additional information on a motion submitted by someone else
   
   If an agenda has already been distributed or the motion has been submitted by someone else then you will not be able to provide an explanatory note for the motion. If you have a good relationship with the party submitting the motion, you may be able to work with them and have them submit the explanatory note to the motion.
   
   There is nothing in the legislation prohibiting an owner from independently sending correspondence direct to each owner, separate to the AGM Agenda. This may be an option for you if you are not able to get an explanatory note on the Agenda. You should ensure that your correspondence does not contain any defamatory material and you may put your contact details on the correspondence so that owners who wish to seek further clarification can contact you directly.

This post appears in Strata News #111.

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