QLD: Does using the wrong returning officer envelope invalidate an AGM ballot?

Question: Our strata management company sent a secret ballot for committee nominations with a wrong building’s returning officer envelopes. Is the whole AGM invalid?

Our strata management company sent a secret ballot for committee nominations with a wrong building’s returning officer envelopes.

We are not sure how many owners returned the ballots in the wrong building’s envelopes without even noticing that the return envelope was not for our building.

Is the whole AGM invalid?

Answer: The motion voted upon by secret ballot may be invalid, not the entire annual general meeting.

The regulation module sets out the process that the Body Corporate must follow to conduct a secret ballot.

Section 109(4) of the Body Corporate and Community Management (Standard Module) Regulation 2020 relevantly provides (for instance):

All completed hard copy and electronic votes received before the votes are counted at the general meeting must be given to the returning officer and held in the returning officer’s custody until the votes have been counted.

If the votes were not returned to the returning officer for the Scheme, then the secret ballot has not been validly conducted by the Body Corporate.

In Parkwood Villas [2016] QBCCMCmr 161 the adjudicator, however, relevantly provides:

The courts have recognised that the detailed provisions of the body corporate regulations make non-compliance almost inevitable from time to time. It has been held that minor instances of non-compliance will not invalidate a decision, particularly where a committee has acted in good faith. Therefore, meetings and decisions should be preserved despite minor errors, omissions or other procedural irregularities in meeting procedures, unless it can be shown that there has been some fundamental disadvantage to voters.

It would need to be shown that the incorrect return envelopes materially affected the outcome of the motion or was not minor non-compliance (which seems likely). In these circumstances, the motion voted upon by secret ballot would be invalid (not the entire annual general meeting).

This post appears in Strata News #583.

Holly Dunne
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753