Q&As from Summary of Regulation Changes 2020 webinar

Committee membership

Can a committee member be rejected because they do not accept the by-laws?

No, an individual not complying with the by-laws doesn’t affect their eligibility to nominate or be elected to the committee.

Can a committee nomination be rejected by vote, even though the majority positions have not been filled?

No, if there is a position vacant, an eligible person would be elected unopposed if they are the only nomination.

How do you determine the maximum number of committee members?

The maximum number is 7 if you have 7 or more lots, if you have less than 7 lots, the maximum number is the number of lots in the scheme.

If on a two-member committee one takes the position of chairperson and secretary, is that counted then as 3 committee members?

No, there is no change to the regulation in this regard. A person can hold more than one position however you are still required to have a minimum of 3. So, if one person holds 2 executive positions then the committee could consist of another person holding the third executive position and an ordinary member.

If a couple have joint ownership of 2 lots, can they both nominate for the committee?

Yes, the new regulations prevent couples who own 1 lot from being on the committee. The same applies as does now, if you own more than one lot you get a nomination for each lot you own up to a maximum of 3.

Can I clarify - 20 lots = 7 min committee members but can be up to 12 if approved by resolution?

For a scheme of 20 lots, the maximum number of committee members is 7. The minimum is 3. A maximum of 12 is for a committee of a principal body corporate in a layered scheme.

In layered scheme what is minimum lots to enable increase to 12?

The number of lots will determine the number of committee members on the principal body corporate committee. For example 12 lots or more will mean there can be a maximum of 12 committee members. If there are 10 lots there is a maximum of 10 committee members. Remembering that lots in a layered scheme are usually subsidiary schemes.

Will electronic ballots be allowed for elections? If so, are the results determined at the AGM or sometime after?

Yes, the body corporate can hold an open ballot or secret ballot committee election electronically, if approved by ordinary resolution of the body corporate, the results are declared at the AGM. The body corporate must operate a system for receiving electronic votes that complies with the requirements of the regulation.

Is there still a requirement for an EGM after 1 month if the minimum number of committee members cannot be elected?

Yes, that is still the same in the new Standard Module.

As the required number has been removed, does this mean casual vacancies are required to be filled?

There hasn’t been a change in filling vacancies, only the term ‘required number’ has been removed and replaced with a maximum number of committee members. If someone resigns or a position becomes vacant, there is still a requirement to fill the vacancy.

What if the maximum number of committee members isn’t reached even after a calling from the floor?

The requirement is to call from the floor to try and reach the maximum number, if that is not reached, the same happens as does now, you can carry on with the number that is elected so long as you have reached the minimum of 3.

Committee positions v persons? If one person holds all 3 executive positions can you have 6 ordinary members?

Yes, if the scheme is large enough to allow a maximum of 7 members, then a person could hold all executive positions and there could be up to 6 ordinary members.

Committee meetings

What’s the difference between a lot owner request and a motion? It seems that an owner must now make a motion rather than write and request something, is this correct?

A request asking the body corporate to do something would be the same as a motion to ask the body corporate to do something.

Can a body corporate manager do the electronic voting or only the secretary as you said?

As currently allowed, the body corporate manager can perform the functions of the secretary if it is part of their duties under their engagement.

The regulation provides in the examples, that a committee meeting may be held by email. How is this different to a VOC?

The new Standard Module provides that a committee member can attend a meeting electronically e.g. by email. Whilst this is similar to a VOC, a motion is decided differently at a committee meeting compared to a VOC.

Just to clarify the voting on a VOC, if the vote is sent to 7 members and only 3 vote, does the majority of the 3 that voted effect the resolution?

No, for the motion to pass, a majority of all voting members of the committee entitled to vote on the motion must agree to the motion. So in a situation where there are 7 committee members, 4 would have to agree to the motion for it to pass. Unlike a committee meeting which is the majority of those that turn up (provided there is a quorum) and entitled to vote.

Under the expiring and new Standard Module should members' secret ballots remain just that?

There has been no change, an owner’s vote should not be able to be identified for a secret ballot. However voting papers, including secret ballot papers can be provided to an owner if they request them under section 205 of the BCCM Act.

So we send the VOC to owners at the same time it is sent to committee members, but we only have to advise owners of the outcome via the minutes of the next meeting?

When a motion is decided by VOC, a record is sent to the owners within 21 days of the decision (not referred to as minutes). The vote is then confirmed at the next committee meeting, minutes are sent to the owners within 21 days of the committee meeting.

Regarding owners’ motions to the committee, are there provisions compelling an owner to follow the same rules as submitting motions for the AGM. For example, if a motion is for maintenance/improvement, do they need to provide copies of quotes?

The regulations do not provide how a motion should be written. You could rely on the committee to source quotes, however if you submit a motion with quotes yourself if may result in a more timely result. It is up to the person submitting the motion if they want to source quotes or ask the committee to. The legislation doesn’t specifically provide for who should obtain a quote unless the cost of the proposal is over the relevant limit for major spending where it is provided that the person proposing the motion obtains the quotes.

If I am a lot owner and another lot owner nominates me as their proxy, can I still act on their behalf?  I'm confused if that will mean I have 2 votes.

A committee member can appoint a proxy, but it must be another voting committee member. Yes, provided they do not owe a body corporate debt, you will have 2 votes.

For a general meeting, an owner can appoint a proxy. You will be able to vote for your lot and cast a vote as proxy for the other owner, provided the lots do not owe a body corporate debt.

Can the owner and the owner's representative both attend together?

The section of the new Standard Module is not clear as to whether both the owner and their representative can attend.

In relation to a person being invited to speak at a committee meeting, is that invited by the chairperson or by resolution?

It is a committee resolution to allow someone to speak at the meeting, not the decision of the chairperson.

Can a person deemed unfinancial speak to a motion, where speaking itself is not a vote?

If a person is deemed unfinancial they can’t vote, it doesn’t prevent them from speaking or attending a meeting.

Under what circumstances can a VOC have a shorter time frame than 21 days?

Under any circumstance, if you get enough votes back before the 21 days is up to decide the motion, the decision can be made. The 21 day period is so that a decision can be deemed by the end of the period.

Does confirming a decision made by VOC at the next committee meeting mean the vote is taken again.  What if the vote is different at the next meeting?

No, it is just confirming it, you are not voting again. The results are simply confirmed.

Are there any minimum number of committee meetings per year specified in the legislation?

No, there is no specific requirement to have a particular number of committee meetings.

Can an owner bring a representative to give them legal advice during the meeting?

A representative can attend a meeting if they have their name on the body corporate roll as the representative of the lot or have provided evidence that the owner has asked them to attend the meeting. The representative must provide certain information provided in the regulation. The representative can speak at the meeting if invited to speak by the committee.

If a VOC is not voted by a majority within the 21 days it is considered to have failed? Is that correct?

If a decision is not made within 21 days, it is taken to have not been agreed to.

If the committee don't make a timely decision what can the owner do?

A person may be able to make a dispute resolution application with our office after attempting self-resolution.

Announcing the result of a VOC at next committee meeting. What can owners do if no meetings are held?

The decision is made when the vote is taken by VOC. It is only confirmed at the next meeting (the committee does not vote on the motion again). If an owner puts a motion forward to the committee and does not receive an outcome within the decision period, the decision is taken not to be agreed to and the owner may be able to make a dispute resolution application with our office.

What do you mean when you say a debtor member is considered part of the quorum?

Before a committee meeting can commence there must be a quorum, which is at least half of the committee members attending the meeting. A debtor member is counted as part of the quorum.

Can an owner submit a motion at any time, or are they limited?

An owner can submit a motion at any time. A committee is not required to decide a motion if the person has submitted 6 or more motions within the 12 month period before the motion was submitted. However the committee could still decide another motion if they want to.

Does an abstained vote effect the resolution of a VOC? For example if there are 6 committee members entitled to vote and one member returns a written vote of ‘abstain’, does that abstain vote mean they do not agree to the motion?

An abstained vote is neither a vote for or against the motion. If there are 6 committee members entitled to vote, 4 or more of them must vote in favour of the motion for it to pass.

VOC - Is there a requirement to advise owners of any VOC within a certain time period or can it just be confirmed or ratified at the next committee meeting even if that is later than 21 days past the decision period?

There has been no change in the process regarding notifying owners of a VOC and the outcome of the vote. Notice of the motion goes to all committee members and advice of the motion is sent to owners. Once the decision is made a record of the decision is sent to the owners within 21 days. The decision is then confirmed at the next committee meeting.

If a person puts through a motion now to the committee, does that fall under the new legislation yet, are the committee required to make a decision within 21 days?

No, the new regulations commence 1 March 2021.

If the committee rejects a motion, can the motion still be put forward to a subsequent general meeting?

Yes.

Is there a regulation that deals with awarding contracts to a committee member without seeking an alternative quote?

No, a body corporate can engage a person who is a member of the body corporate to provide services to the body corporate. A second quote is required if the spending is over the relevant limit for major spending. Note that if a committee member is engaged as a service contractor (see section 15 of the BCCM Act) they are not eligible to be a voting member of the committee.

Do the two insurance quotes need to be supplied to the committee only or all lot owners?

If the committee is making the decision, the quotes would go to the committee. At the AGM the insurance details are confirmed with the owners.

Insurance, what happens if you can't get 2 quotes as no insurers will insure?

There is already provision that allows for exceptional reasons for only 1 quote to be obtained. These provisions haven’t changed in the new module. If the body corporate cannot obtain the required level of insurance, you may wish to contact our office regarding authorisation for alternative insurance.

If after going to market only one quotation is available for insurance and it is above major spend can committee approve?

Under the new Standard Module the committee can enter into or renew a policy of insurance even if it involves spending over the committee’s spending limit. There is already provision that allows for exceptional reasons for only 1 quote to be obtained. These provisions haven’t changed in the new module.

Is a quorum required for a VOC?

A quorum is for a committee meeting not a VOC. For a resolution to pass by VOC, a majority of all committee members entitled to vote on the motion must agree to the motion.

Does the manager need to disclose the amount of benefit it receives from 'parties' for insurance?

Yes. The provisions about disclosure of commissions and benefits already exist, they have only been amended to provide that if the benefit is monetary, the amount must be disclosed.

General meetings

In relation to submitting motions for the first AGM - must be included if practicable. What is meant by practicable?

There is no definition in the legislation.

Do the changes restricting the use of power of attorney also govern the use of proxies?

No, the current module already provides restrictions on the use of proxies and this is the same in the new Standard Module. The new Accommodation Module does provide a change about the number of proxies a person can hold, which brings it in line with the Standard Module. The provisions restricting the use of powers of attorney are new.

What happens if one arranges for electronic presence at the AGM but then the link to access the meeting does not work? What happens in such case with amendments proposed at the AGM?

The legislation doesn’t provide contingency plans. Each body corporate will need to manage this reasonably, as it happens.

Electronic voting: what happens if a member doesn't want to vote electronically or they have technical issues during an online meeting? Can they vote on a motion verbally and the secretary record their vote manually?

The legislation doesn’t provide contingency plans. Each body corporate will need to manage this as it happens. A person does not have to vote electronically, they can still vote at the meeting or by voting paper.

Would you please explain the change regarding quorum again?

There are changes in the way a quorum can be calculated, the body corporate can decide by special resolution to reduce the number of voters personally present to 1 and the percentage of voters from 25% to no less than 10%.

Will the Qld Government provide access to an electronic voting programme for Body Corporates to use?

No, this is not something we will provide. Body corporate management companies and other organisations would likely provide these services.

Does the requirement for a building defect report only apply to the second AGM and no later ones?

The regulation provides a defect assessment motion is to be included on the second AGM agenda.

For the first AGM, when the developer provides details of an agreement with a utilities company, are they obliged to provide details of commissions/benefits received or will receive in future from the Utility Company?

This is not covered in the new Standard Module.

Administrative matters

Must the body corporate supply documents provided by the original owner to an owner and under what conditions? Can the committee claim that such documents did not have to be held or are they statutorily required to be held forevermore?

The body corporate must keep records and allow access and copies of records, as required under the legislation. The committee cannot overrule the legislation. The Standard Module provides for what documents can be disposed of and at what time in section 231.

If the body corporate has not specifically voted to allow the body corporate manager to take on the secretary duties, must documents be sent to the secretary?

It would be unusual for a body corporate manager not to take on secretarial functions. If it isn’t part of their engagement then documents must be sent to the secretary if the regulation requires it.

Does an owner have to use the BCCM Form 8 to update the roll, or can they just email the detailed change e.g. phone number?

The form 8 is not a prescribed form, it does not have to be used.

When the body corporate roll is updated should all owners be given a copy?

There is no requirement in the legislation for a copy of the roll to be sent to owners when it is updated. An owner can request a copy under section 205 of the BCCM Act.

Must a body corporate roll only have genuine owner’s names on it?

There has been no change as to what is required to be provided for the roll.

Should the roll keep the historic records of ownership?

There have been no changes as to what currently applies for the keeping of the body corporate roll.

Other

Could you please enunciate which and how many of these changes are merely to align the Standard module with Accommodation module?

The video is in relation to the Standard Module regulation only. However most the changes are replicated in the Accommodation Module. We hope to have more resources available at a later date.

Are there any changes in the new regulations for self-managed body corporates?

The changes apply to all schemes, self-managed or not.