Q&As from the body corporate decision making and meetings webinar
Please note that information provided is based on the Standard Module regulation. If your scheme is registered under another regulation module, you should refer to that particular module.
- Vote outside committee meeting (VOC)
- Meeting notices
- Voting and proxies
- General meeting procedures/attendance
- Committee meeting procedures/attendance
- Minutes and records
- Committee composition and vacancies
- Disputes
- Other
VOC’s
Can a committee meeting be held by email communication or other forms such as WhatsApp?
A vote outside committee meeting can occur by writing to all committee members. The motion is passed if a majority of the committee members agrees in writing to the motion. The use of ‘apps’ is not specifically covered in the legislation. Keep in mind that the body corporate must be able to provide records of the vote and that these must be distributed to lot owners. Also, associated committee meeting material (notices of the resolutions and the responses) are body corporate records that can be requested by an interested person (Section 205 of the Act).
If a committee makes an informal decision, what is the process for a lot owner to challenge the decision?
There is no such thing as an informal decision, a decision can only be made at a committee meeting or by a vote outside committee meeting (VOC). If the decision made at an ‘informal meeting’ is reasonable, the decision could potentially be ratified at a committee meeting or by VOC. A lot owner could challenge a decision made informally by first attempting self-resolution and then possibly lodging a dispute application with our office.
A decision taken informally and then ratified formally at the next committee meeting is the only practical way for business to be conducted.
The legislation states how a committee can make a decision. Under the Standard Module, this is either at a committee meeting or by a vote outside committee meeting. There are no other ways a committee can make a decision. If the body corporate does not follow the regulation an occupier may dispute the decision.
Does the caretaker need to be included in the notice of a flying minute (vote outside committee meeting), even though the caretaker cannot vote?
The Standard Module states that notice must be given to all committee members. A caretaking service contractor is a non-voting member of the committee so therefore must be given the notice. Notice must also go to all lot owners in the scheme.
We have regular committee meetings but sometimes make decisions via email exchange (we keep all emails as records), is that acceptable? We mention the decisions made at the next committee meeting and they are recorded in the minutes of the meeting.
The Standard Module allows the committee to make decisions in writing by a ‘vote outside committee meeting’ (VOC). It is suggested to be clear in the email correspondence that the committee is voting on a motion. Notice of the motion must go to all committee members and owners and records sent to lot owners within 21 days of the decision. The motion must also be confirmed at the next committee meeting.
Is there a reasonable amount of decisions that can be made by VOC (vote outside committee meeting) rather than at a committee meeting? The scheme has become very secretive since they started mainly making decisions by VOC.
There is no requirement for the amount of committee meetings and how many should be in person or by VOC. Whether in person or by VOC, the committee must provide notice to owners of the meeting and distribute minutes and records within 21 days of the meeting or decision.
Meeting notices
Can all meeting notice and minutes be sent by email? Is there anything that has to be sent by post?
Notice of committee meetings can be sent by email if agreed to by the lot owner. General meeting notices must be sent to the owners address for service which must be an Australian address. Other notifications such as minutes and records can also be sent by email.
An amended agenda was issued with an amended motion two days after the original notice of the AGM was issued, declaring that the original agenda was incorrect, is this acceptable?
It is possible when errors are made that a new agenda and papers could be sent out, as long as the owners are still given the required notice of the meeting (21 days).
Voting and proxies
If there are 100 lots in the scheme but only 10 owners vote at a general meeting, is this valid?
For a general meeting to commence there must be a quorum (at least 25% of the number of voters present for the meeting). A voter is present in person, by proxy or by written or electronic voting paper). Also, if the number of voters is more than 3, 2 must be personally present at the meeting. If only 10 owners were present after 30 minutes of the scheduled start time, the meeting would be adjourned for 1 week. At the next meeting 10 people could form a quorum.
If a lot owner is in debt, can they can still vote on motions for the AGM?
Owners cannot vote on a general meeting motion if they owe a body corporate debt at the time of the meeting, unless a motion is to be decided by a resolution without dissent.
What is the best way to resolve a situation where a motion presented at a vote outside of committee meeting is not concluded? Would putting it on a committee meeting agenda force an outcome?
If a motion does not pass by VOC, then there is no reason why the same motion cannot be presented at a committee meeting, or a general meeting of the body corporate.
If the motion was not concluded due to lack of response, it is suggested that a notice to vote by VOC specifies a reasonable time frame to respond.
Must a committee member abstain from voting at a committee meeting if they are voting on a motion to approve an application (e.g. building improvement /pet application) in relation to their lot?
The Standard Module states that an owner must disclose if they have a direct or indirect interest in a motion and must abstain from voting. For example if the owner directly benefits from the motion, they would be expected to abstain.
Do you have any examples of apps that allow electronic voting, including VOCs?
Our office is unable to provide any details of apps that may be available for electronic voting. Electronic voting does not include email voting, email voting is electronic ‘communication’. You are allowed to scan a written vote and attach to an email, this is still different to an electronic vote.
Can a building manager walk into an AGM with 23 voting papers and submit them to be included in a scheme of 86 lots. Are they valid votes?
A third party cannot hand in voting papers. Also, if the votes are by proxy, there are restrictions in the regulation module on the amount of proxies a person can hold.
If the chairperson and treasurer are the same person, does that give them one or two votes?
Although a person can hold more than one executive position, they still only have one vote at a committee meeting.
If a lot owner has levy arrears and consequently cannot vote at an AGM, can they be on the committee or what involvement/rights can they have with the committee/body corporate until the debt is cleared?
An owner who is un-financial is still able to submit motions, however they cannot vote on a motion at a general meeting of the body corporate except for a motion to be decided by resolution without dissent. They also cannot nominate for the committee or be elected on the committee at a general meeting, if they owe a debt at the time of nomination or election. If they are already on the committee and then become un-financial they are still able to vote at committee meetings.
Given that under section 71 of the Standard Module, voting papers do not require an ‘abstain’ option, do we need to keep adding an abstain option on the voting paper?
It seems pointless, for if someone does not cast a vote, does that not mean that they abstain anyway?
You do need to include an abstain option, the tally sheet and minutes require for abstentions to be recorded. The legislation does not provide for how to record on the tally sheet, when an induvial does not return or does not mark the voting paper.
General meeting procedures/attendance
Is general business mandatory at an AGM? If it is, what procedures should be followed? Can motions be voted on in general business and if so, are they legally binding?
There is no provision in the legislation for general business at an AGM or other general meeting of the body corporate. For this reason there is no specific process. Those present at the meeting could pass a procedural motion to include general business at the meeting. However any motions raised in general business cannot be voted on as they would not be on the agenda for the meeting.
If a motion at an AGM from an owner is to change a by-law, but the motion is incomplete and does not include the need to update the CMS should it be ruled out of order?
Adjudicators have ordered there must be a motion to change the CMS as per section 62 of the Act. Therefore the motion could be ruled out of order if the request to update the CMS is not contained in motion or as a separate motion.
An AGM is held every year in mid-December, which is not conducive for attendance. What is the process to change the AGM date?
An AGM must be held within 3 months of the body corporate’s end of financial year (EOFY). If your AGM is held mid-December, this indicates that the EOFY could be up to 3 months prior. If this is the case, the body corporate could get organised and hold it sooner (i.e in November). However, if it is necessary to hold the meeting late, the body corporate can apply for an order to hold it late. Or at the next general meeting of the body corporate, a motion can be passed by ordinary resolution to change the body corporate’s EOFY date. The committee can then authorise to apply for the order to change the EOFY date.
At an AGM, do both co-owners present have the right to speak?
The Act and regulation modules are silent about speaking at a general meeting. The meeting could decide to have a procedural motion to allow discussion. Co-owners are still owners and therefore could speak, however still only have one vote per lot.
Committee meeting procedures/attendance
Can the committee request that the caretaker does not attend body corporate meetings?
A caretaking service contractor is automatically a non-voting member of the committee, there is nothing in the legislation saying you can prevent them from attending. However the Standard Module provides for when they can be asked to leave a meeting, for example for a discussion or vote about a particular issue. Also the caretaker is usually a lot owner, if that is the case you would also not be able to prevent them from attending a general meeting of the body corporate.
If an agenda for a committee meeting does not have the exact wording of the motion to be voted on (i.e. just a general topic), can the committee give the motion orally and then vote on it?
Although a notice of a committee meeting must include an agenda, the committee can raise new motions and issues at the committee meeting even if they are not on the agenda unlike a general meeting where a motion must be on the agenda to be voted on.
If one committee member is openly opposed to all other members and is verbally abusive, are there steps available to remove them as member?
The committee cannot remove a committee member. A committee member can only can be removed by ordinary resolution of the body corporate at a general meeting. A committee member could also be removed by first passing a motion by ordinary resolution to issue them with a breach notice and then removing them by ordinary resolution at another general meeting.
If there are 4 lots in the scheme consisting of only 3 owners and 2 are on the committee, if only 1 person turns up for a committee meeting, is this a quorum?
This depends on the regulation module, only the Small Schemes Module allows for a committee of 2 (secretary and treasurer). A quorum under the Standard Module is at least half of the voting members of the committee. So if the committee consists of 3, you would need at least 2 present. Under the Small Schemes Module, committee meetings are held in the way the committee decides. If the positions of secretary and treasurer are held by two people, a motion passes if both agree.
If a committee member does not declare conflict of interest where/what can the committee do about it?
The Standard Module does not allow for another person to declare a voting committee member’s conflict of interest. Potentially if their vote changed the outcome of a decision, this could be disputed.
If a committee member does not behave properly at a meeting can he be asked to leave? Can the chairperson authorise this, or only or majority or the committee?
The legislation does not specifically deal with committee members being asked to leave a committee meeting, only non-members being asked to leave. It may not be unreasonable for the committee to vote by majority and ask the member to leave in the circumstances, however there is nothing in the legislation to support this.
If the chairperson walks out of the committee meeting due to an argument, can the remainder of the committee members appoint another chairperson and continue the meeting?
If you have a quorum, the persons present can choose a person to chair the meeting if the chairperson is not present e.g. body corporate manager or another committee member.
If our body corporate manager provided wrong advice regarding committee meetings and processes are both the body corporate manager and the committee liable, or is the liability on the body corporate manager only?
The regulation states how the committee makes decisions, while the body corporate manager should have an understanding of the Act and regulation modules, the committee are the ones making the decisions and who may be liable. The body corporate manager needs to comply with code of conduct in the Act (schedule 2). Therefore it may be possible to issue them with a remedial action notice.
It seems pointless to have a committee member from interstate elected onto the committee who cannot attend meetings since they can only have 2 proxy votes per year. Do you agree?
Under the Standard Module regulation the committee can make decisions either at a committee meeting or by a vote outside committee meeting (VOC). Adjudicators have found that committee members can also attend by skype or teleconference or other technology. If a committee member is not present personally or by proxy at 2 consecutive meetings of the committee without the committee’s leave, their position becomes vacant.
Minutes and records
What is the process for requesting a change to the minutes circulated after an AGM?
The legislation only provides for a motion for minutes to be confirmed at the next general meeting. However there is nothing preventing an owner to advise the committee that there are errors in the minutes. The Standard Module lists what needs to be included in the minutes, anything outside of that would not be necessary to include. For example, if the meeting included general discussion, this would not need to be included in the minutes. If an owner believes the minutes to be incorrect they should first ask the body corporate to correct the minutes, if the committee won’t, they could perhaps request an EGM to approve the minutes be changed.
Is there a prescribed format for committee meeting minutes if we go ahead and have meetings without involving the body corporate management company?
The Standard Module outlines the meaning of full and accurate minutes and full and accurate records of meetings. This is regardless of whether there is a body corporate manager or not.
Is it legal to record a meeting electronically? If so, can you then share the recording with non-present owners?
Queensland law may provide that if you are party to a conversation, you can record that conversation, however you would need to look into this further. You may also need to refer to the code of conduct for committee voting members (schedule 1A of the Act). Part of the code of conduct states that a committee member must not unfairly or unreasonably disclose information held by the body corporate, including information about an owner of a lot, unless authorised or required by law to do so. Also, if a committee decides to record a meeting, it would be a body corporate record which could be accessed by an interested person under section 205 of the Act.
Can I get copies of the minutes from a meeting 3 or 4 years ago, how much does it cost.
Section 205 of the Act states that the body corporate must provide copies or allow a person to inspect the body corporate’s records within 7 days. You can access the fees via our website. You should ensure to specify which documents you want a copy of. If you are not sure which document you want, you may need to firstly inspect and search the records. You can also refer to our previous webinar about access to records.
A body corporate manager has advised that any requests to change the AGM minutes must be submitted within 3 months of the AGM and cannot be dealt with at the following AGM, is this correct?
The legislation states there must be a motion on the next general meeting agenda (does not specify it has to be an AGM) to confirm the previous meeting minutes to be accurate. It may be practical to address errors straight away, however legislation does not strictly deal with that. If you do not agree with the minutes, you should raise the issue in writing as soon as possible.
If an owner sends a letter to the secretary for inclusion in the body corporate records, can the committee choose not to include the communication?
The Standard Module explains what documents must be kept by the body corporate. Any letters, emails and correspondence sent to the body corporate are body corporate records.
Who is responsible for the StrataMax Portal arranged by the body corporate manager? If it does not allow owners to obtain documents from it, who should fix it?
Did the body corporate engage or enter in an agreement to use the StrataMax portal? If so, check the contract. If it is part of the body corporate manager’s contract it could be in the terms of the contract about who is responsible for it.
Can a body corporate manager reject the request of the body corporate committee for a copy of the body corporate roll stating privacy as the reason?
No, the Privacy Act states that where another act permits the release of personal information, the records can be released. Section 205 of the body corporate Act states the information can be given and adjudicator’s decisions will reflect this.
Committee composition and vacancies
If a committee member without leave or a proxy does not attend the first committee meeting after the AGM having failed to attend the last committee meeting prior to the AGM, can their position be declared vacant?
No, the committee ceases at the AGM and a new committee commences at the end of the AGM. It is 2 consecutive meetings in the same year.
We are a small body corporate of 7 lots and have one or two committee meetings a year. One member of the committee has only attended 1 meeting out of 16 over the last 9 years. They sometimes send an apology but the committee has never given leave for their absence and the member has never given a proxy. Should the committee be taking action to stop this behaviour?
The Standard Module states that the position becomes vacant if the member is not present in person or by proxy at 2 consecutive meetings of the committee without the committee’s leave. You could declare that the position has been made vacant and fill the vacancy.
I am in a building of seven units. When you say 'the committee' does that mean chairperson, secretary and treasurer, or also ordinary members? Are you not a member just because you are an owner? If the issue involves me, should I be advised the committee are going to meet to discuss the issue or can two or three committee members just get together and make a decision and then just have me informed by the body corporate manager. Should they take minutes of that meeting?
The committee is made of executive and ordinary members. You are not a member of the committee unless you nominate and are elected at the AGM. For a scheme of 7, the required number of voting committee members is 3. If you are an ordinary member of the committee you must be included in committee decisions. All owners are given a notice of the committee meeting 7 days prior to the meeting. Non-members can attend the meeting provided they give advice of their intention to attend in writing at least 24 hours notice before the meeting. Minutes of all committee meetings and records of a vote outside committee meeting must be recorded and distributed to all owners in the scheme.
What is the minimum and maximum number of committee members allowable for a scheme registered under the Accommodation Module?
Under the Standard, Accommodation and Commercial Module the minimum number of voting committee members is 3. The maximum number of committee members is 7, or if there are less than 7 lots, it is the number of lots in the scheme. Refer to dictionary in the module.
Disputes
What is the process at an AGM if the budget is rejected by an owner at the meeting? What is the role of the body corporate manager who is holding the proxies and chairing the meeting in relation to the rejection?
The budget is approved by ordinary resolution of the body corporate (more yes than no votes). One owner could only pass a motion if they were the only one present and if they were 25% of the voters for the meeting. If the motion to approve the budget does not pass, the body corporate would have to call an EGM, amend the budget and try to pass it again. The body corporate manager may assist to reformat the budget.
Body corporate managers are not able to hold proxy votes.
If there is a dispute in a small body corporate (5 lots) that has been ongoing, and there is no progress (motion rejected at AGM and EGM), is adjudication or conciliation the only option? The 4 lots have a good relationship and are teaming up against one lot.
If a person is trying to get a motion passed and it won’t pass at a general meeting, the only option after self-resolution would be a dispute application with our office. Generally a dispute of a general meeting resolution is an adjudication application, however depending on circumstances could be referred to conciliation. There is no other jurisdiction for body corporate disputes.
If a motion to be decided by resolution without dissent failed at an AGM, is adjudication the next step for owners? Is there an alternative appeal process?
Our office is the sole jurisdiction for disputing the outcome a motion of this type that was considered at an AGM. You can refer to Practice Direction 34 for disputing a resolution without dissent. Before lodging an application you must have first attempted self-resolution.
At the AGM the motion regarding the audit is always over ridden by the body corporate committee with proxies and therefore an audit has not been done for many years. What is the time frame for when an audit has to be done?
Under the Standard Module and Accommodation Module it is assumed that the body corporate will audit every year, the motion to be included is whether not to audit. If the motion has passed not to audit, then an owner could request an extraordinary general meeting (EGM) to vote again by ordinary resolution to appoint an auditor and have an audit conducted. You could also vote not to allow proxies on this type of motion.
If a committee votes by VOC and does not approve a change within an exclusive use area, i.e building a deck and the owner starts the building process anyway, what should the committee's next step be?
The committee can only approve a minor improvement (under $3000), otherwise the approval is given at a general meeting. If the owner starts to build and the by-law does not allow them to without approval the committee could give them a contravention notice. They could potentially then lodge a dispute resolution application with our office if they fail to comply with the notice.
Other
Is the committee itself empowered to appeal an adjudicators order to QCAT?
Section 42 of Standard Module determines restricted issued of the committee and section 312 of the Act explains a prescribed proceeding. An ordinary resolution is required to commence a proceeding to appeal an adjudicator’s order. There is a 6 week time limit to appeal an order.
If a lot owner makes an improvement to their lot, does the committee, body corporate manager or the body corporate have a say on whether it can happen or any other responsibility?
If an owner wants to make an improvement to their lot, they will only need approval if they are affecting common property, or if there is a by-law that prohibits them making the improvement. The committee should be able to approve the improvement provided it is not a restricted issue of the committee (section 42 of the Standard Module).
If the owner is making an improvement that also affects the common property, section 164 of the Standard Module states that the body corporate can authorise the improvement. The value of the improvement on common property will determine whether committee approval or body corporate at a general meeting approval is required.
The body corporate manager is not able to approve an improvement,
Can the committee authorise a motion to say that a particular person can be appointed to give instructions to the caretaker?
If it is not already in the caretaker’s contract, the committee could vote to elect a liaison, they would be a messenger not a decision maker as the Act does not allow the body corporate to delegate its powers (s97 of the Act).
If the body corporate is directed to remove an invalid by-law as a result of an adjudication, does this motion to remove the by-law need to be passed at a general meeting or can it be a committee decision?
It is suggested that you refer to the adjudicators order to determine what the adjudicator has ordered and the particular wording. For example if the adjudication has ordered that the body corporate call a general meeting, then this is what should happen.
You mentioned a limit of $3000 in relation to a body corporate courtyard, what do you mean by this, what are the responsibilities of the body corporate and the committee?
The $3000 limit is in relation to the committee authorising an improvement to common property or to an exclusive use area, by an owner. If the improvement is to be made within the lot boundary, the $3000 limit does not apply. Approval will only be required if there is a by-law which says so.