NSW: Pre-Meeting Electronic Voting – When (and When Not) to Use it

This article is about pre-meeting electronic voting in NSW.

The 2015 reforms permit Owners Corporations to hold meetings electronically and also pre-meeting electronic voting (when the motion is not an election).

What is pre-meeting electronic voting?

Essentially, it is voting on a motion via the electronic means specified in the meeting notice. It can be used for both general meetings and strata committee meetings. Schemes cannot just implement pre-meeting electronic voting, they must first pass a resolution to adopt it.

Where a scheme has passed a resolution to adopt the use of pre-meeting electronic voting, the ballot paper must specify instructions for completing the ballot paper, the question to be determined, and the means of indicating the voter’s choice on the question to be determined.

The meeting notice must provide:

1. access to an electronic ballot paper, or to a voting website or electronic application containing an electronic ballot paper, that complies with this clause, and
2. access to information about–
1. how the ballot paper must be completed, and
2. the closing date of the ballot, and
3. if voting is by email, the address where the ballot paper is to be returned, and
4. if voting is by other electronic means, the means of accessing the electronic voting system and how the completed electronic ballot paper is to be sent to the secretary, and

3. access to an electronic form of declaration requiring the voter to state–
   
   1. their name, and
   2. the capacity in which they are entitled to vote, and
   3. in the case of a matter that requires a special resolution, their lot’s unit entitlement, and
   4. if the vote is a proxy vote, the name and capacity of the person who gave the proxy.

Limitations of Pre-meeting Electronic Voting

There are significant limitations on using pre-meeting electronic voting which include:

• It does not allow a discussion on topics of importance enabling a case to be put for and against the resolution or to allow lot owners to ask questions about the motion including the reason for it, what it will mean for the owners corporation and whether or not there are any other alternatives.
• A meeting still needs to be held & so there are not necessarily any cost savings as your strata manager will have to take time to tally up the votes and attend the meeting. There may be cost savings however if only the chairperson is present (rather than the strata manager). If only the chairperson is present, they can declare quorum and start the meeting after waiting 30 minutes past the scheduled start time.
• It is very easy to make a mistake on the form i.e. how many people would know their unit entitlements? This information must be completed for motions requiring a special resolution.
• It is very easy for lot owners to mistake the close of the pre-meeting electronic voting ballot with the actual meeting time and not turn up to the meeting thinking they have voted. A pre-meeting electronic vote must be returned 24 hours before the meeting it relates to. If it is returned past the close of the ballot it is not counted.
• If a vote is wholly by pre-meeting electronic voting then the motion cannot be amended at the meeting.
• If a vote is to be determined partly by pre-meeting electronic voting and also by voting at the actual meeting then the motion may be amended at the actual meeting if the amendment does not change the subject matter of the motion is changed. Any change to the motion at the actual meeting would be a change made after the end of the pre-meeting electronic voting had closed and the pre-meeting electronic votes would have no effect. Although there must be a note on the meeting notice about this possibility some lot owners may not fully appreciate this.
• Pre-meeting electronic voting cannot be used for elections for example to elect a strata committee or to fill a vacant strata committee member’s position.

Benefits of using Pre-meeting Electronic Voting

The greatest benefit of pre-meeting electronic voting is where the decisions to be made are uncontroversial and require no discussion.

Enabling lot owners, their proxies or company nominees to vote electronically rather than attend a meeting can also assist:

• Increase participation in voting as people who may not have attended a meeting can vote electronically
• Keep meetings short and to the point as
• There are limits on changing motions that are also voted on using pre-meeting electronic voting;
• It is likely that fewer people will attend the meeting; and
• The outcome of the pre-meeting electronic votes may already have decided the motion

• Keep the peace amongst lot owners by reducing confrontations.

While it has its place, given the past year forcing the increased uptake of technology, to me the benefits of pre-meeting electronic voting pale in comparison to simply holding meetings electronically whether over the telephone or via videoconferencing software.

I note that the Strata Schemes Management Amendment (COVID-19) Regulation 2020 has temporarily allowed all schemes, regardless of whether or not they have passed a motion permitting electronic meetings to hold meetings electronically.

Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990

This is general information and should not be considered to be legal advice. I recommend you obtain legal advice specific to your individual situation.

This post appears in Strata News #490.

Have a question about pre-meeting electronic voting or something to add to the article? Leave a comment below.

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Read next:

• NSW: Q&A Using Electronic Voting to Fast Track Committee Decisions
• NSW: Q&A Proxies and Voting Rules for Owners Corporation Meetings
• NSW: Q&A Can we hold Electronic Meetings and have Electronic Voting?

This article has been republished with permission from the author and first appeared on the Thoughts from a Strata Lawyer website.

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