This article discusses the invalidity of AGM voting papers delivered to the secretary through another owner or committee member.
Question: Can an owner give their completed AGM voting paper to another owner or committee member for delivery to the secretary?
Some owners reported that during the 2024 AGM period, a committee member visited them with a voting paper. The committee member suggested how to answer the motions and urged the owners to sign immediately. After they signed, the committee member took the paper and said they would deliver it to the secretary. Is it permissible for an owner to hand their completed AGM voting paper to another owner or committee member for delivery to the secretary?
Answer: Those voting papers would be invalid and shouldn’t count towards the outcome.
No, those voting papers would be invalid and shouldn’t count towards the outcome.
Similar circumstances were considered in Noosa Lake Resort [2014] QBCCMCmr 257 where the adjudicator relevantly provided:
[18] The main question raised is that voting papers were not given to the secretary in accordance with section 84(2)(b) of the Accommodation Module which provides a “voter casts a written vote by giving the voting paper to the secretary (by hand, by post or by facsimile) before the start of the meeting”. The applicant refers to Body Corporate for ‘Surfers Waters’ v Angland & Anor _[2000] QDC 34 and Festival Towers [2010] QBCCMCmr 128. The committee accepts the relevance of these decisions and says voting papers given to the secretary through an intermediary were accepted at the AGM.
…
[21] In submissions to the commissioner, the committee says the voting papers for Lots 43, 44, 57 and 90 were given to the secretary before the start of the AGM. The committee included statutory declarations from: Brian McKay that he collected and delivered voting papers from the owners of Lots 43 and 57; Antony Wetherell of Lot 44 that he sent his voting paper to Trevor Elliott who delivered it to the AGM; Jan Cross of Lot 90 that Trevor Elliott delivered her voting paper to the AGM; and Trevor Elliott that he received and collected the voting papers of Lots 44 and 90 and delivered them to the secretary prior to the start of the AGM.
[22] The applicant replies that there is no evidence of emergency circumstances or that the intermediaries were disinterested parties to warrant departure from section 84 of the Accommodation Module. The applicant argues voting papers not given directly to the secretary by the voter before the AGM and handled by an intermediary cannot be counted.
[23] In submissions to me, the committee claims it has no record of how these voting papers came to the secretary. It says to the best of its knowledge the voting papers were not provided by a third party intermediary. In reply, the applicant says the committee’s submissions are curious given its earlier submissions to the commissioner.
[24] It is uncontested that Mike Lewis was the secretary at the AGM. Given its submissions to the commissioner, I cannot accept the committee’s subsequent submissions. The statutory declarations establish how the voting papers were given to the secretary. In my view, there is nothing in submissions explaining how voters giving their voting papers to Brian McKay or Trevor Elliott complies with section 84(2)(b). These voting papers could not be accepted. It is apparent from the voting tally sheet each lot voted by voting paper even though the owners of Lot 44 were present at the AGM. In my view, the voting papers are void.
Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753
This post appears in Strata News #763.
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