QLD: Q&A AGMs, Motions in Strata and the Obligation to Act

We regularly receive questions from QLD lot owners about strata AGM motions. Please Note: The new QLD strata legislation that commenced on the 1 March 2021 now refers to Motions with Alternatives as Same Issue Motions.

In March 2021, Todd Garsden from Mahoneys joined us for a QLD Webinar covering the New Regulation Modules. You can watch the webinar in full here: QLD WEBINAR: New Regulation Modules. Todd Garsden produced a handy, free one page list of new motions that you can do download here: New Motions For A Body Corporate.

Table of Contents:

• QUESTION: Our chair wrote to the caretaker advising he’s not allowed to attend the AGM. Can they do this?
• QUESTION: Leading up to the meeting, can all submitted motions be condensed onto a one-page summary voting sheet listing the motion, “Yes,” “No,” or “Abstain” and a short description?
• QUESTION: If owners have already approved a sinking fund budget for an amenity, can a subsequent motion lawfully be passed by a body corporate authorising it to spend up to double that amount on improving the same amenity?
• QUESTION: The committee put a motion to the body corporate for major works up to estimated costs based on a quote. They would decide on the contractor once more quotes were received. The motion passed. Was the motion valid?
• QUESTION: I’m concerned about some AGM motions put forward by the committee. I’ve expressed my concerns. Can the chair alone invalidate resolutions/motions put forward?
• QUESTION: Why does the AGM agenda have the details of our 22/23 insurance policy rather than our current policy held by the body corporate for 23/24?
• QUESTION: Do motions have a timeframe? Is the motion still invalid if the original quote is no longer valid?
• QUESTION: How do we vote “Yes” or “No” on a motion to have the unit complex painted with options to choose the preferred painter?
• QUESTION: I’d like to submit a motion to reduce levies by $100 per quarter. How do I word the motion so it’s not ignored?
• QUESTION: Our committee is delaying our AGM indefinitely so they can continue with the current committee to address ongoing building issues. Is this reasonable or legal?
• QUESTION: Our AGM included motions for engaging a new body corporate manager. The motions were presented in a confusing manner and I believe they should be ruled out of order. What do I do?
• QUESTION: If a committee had no AGM the previous year but continued to act as a committee, is this unlawful? Could I raise this in conciliation?
• QUESTION: In our building, pets aren’t allowed on common property. How can I propose a motion to create a bylaw that changes an unused space into a dog friendly area?
• QUESTION: Is the due date for lodgment of documents extended to the next working day ie Monday if the deadline is a Friday?
• QUESTION: If the end of the financial year falls on the weekend, do motions and nominations have to be submitted by the close of business on the last business day of the financial year?
• QUESTION: If an owner submits a proposal and the majority vote to reject the proposal, is the Committee obligated to explain why it has been rejected?
• QUESTION: We have two motions about the appointment of a Body Corporate Manager for our AGM. Can these motions be combined into one that lists all four options?
• QUESTION: Our caretaker has had his lawyer submit two motions. They have been lodged via an owner. Is this reasonable and fair for all owners and the body corporate?
• QUESTION: If an AGM motion was submitted before the end of the financial year (31 July), can it be amended (without change of substance) after 31 July but before the AGM Meeting notice and voting papers are issued?
• QUESTION: Are lot owners required to submit quotes along with their submitted motion if the proposal is less than the major spending limit?
• QUESTION: I put three motions forward but the background to the motions was not included. Is it the role of the Secretary to check the AGM papers include motions plus submitted information before they are circulated?
• QUESTION: Our BCM require 3 months to prepare for an AGM. All motions must be submitted before this cut off date. How can we ensure motions are relevant if quotes for maintenance are only valid for 30 days?
• QUESTION: If an owner submits a motion to the committee with explanatory notes, what must be shown on the committee meeting agenda?
• QUESTION: We’d like to replace all windows. What type of motion will be required and how many votes are needed for the motion to be passed?
• QUESTION: If motions are for the expenditure of body corporate funds, do they always need to include a quotes?
• QUESTION: Our Body Corporate Committee has three motions at our AGM that I believe are invalid. If they are not valid, what can I do about it?
• QUESTION: An owner has submitted a motion but the name on the motion is not the same as per the Titles office. Does this make the motion invalid?
• QUESTION: On sending motions into meetings, how many motions can be sent by the one owner per year? Where can I see the legislation detailing this?
• QUESTION: Is the Committee obliged to comply with a motion if compliance would contravene a by-law?
• QUESTION: Is there a reasonable time in which the committee should respond to lot owner motions for, e.g. a request to keep a pet. Six weeks appears to be unreasonably long.
• QUESTION: Is a motion submitted by a lot owner the same as a lot owner asking for a decision to be made by the committee?
• QUESTION: For part five engagement, does a special resolution require an open ballot? How does it work?
• QUESTION: How do a group of same issue motions look if you had various quotations and colour considerations for something like a roof repair?
• QUESTION: Our Strata Manager says that no one except the chair is allowed to speak at an AGM. Is this correct?
• QUESTION: Can an Explanatory Statement exceed a 300 word limit and do they have to be circulated to voters?
• QUESTION: What happens if prior to a meeting date when one or more of the owners who originally requested that the meeting occur withdraw their support? This would mean that there is no longer 25% support?
• QUESTION: Does my wife’s power of attorney to me allow me to submit motions at the AGM?
• ARTICLE: Group of same issue motions
• QUESTION: There are three decisions being made under one Motion. Is this an approved method of voting or should there be three Motions?
• QUESTION: Should a Chairperson forewarn the submitter that a motion is likely to be ruled out of order? This could save time and also allow the opportunity to amend the motion.
• QUESTION: At a committee meeting, a motion was put forward by the chairperson and it proceeded to a vote. The vote was deadlocked 3 v 3 and the chairperson then had a casting vote. Is this right?
• QUESTION: Who may move a motion to amend a motion? Can, for example, an owner present at the AGM, move a motion at the AGM to amend a motion put forward by the committee?
• QUESTION: A resident in our scheme would like to have General Business included as an item on our AGM Agenda. Is that permissible, or can only the motions included in the circulated Agenda be dealt with at an AGM?
• QUESTION: If a Motion is ‘passed’ at an AGM by Ordinary Resolution, is there any obligation by the Strata Committee or Body Corporate Manager to put it into action?
• QUESTION: Should strata AGM motions be ruled as Out of Order if they are based on and contain incorrect and misleading information?
• QUESTION: We have been advised that voting at body corporate AGM will not involve any debate. If a process removes speaking for or against a strata AGM motion, I am of the opinion this would be non-compliant with legislation.
• QUESTION: Is it OK for a Committee to recommend a preferred contractor in a Motion With Alternatives?
• QUESTION: Is it possible to speak in relation to a strata AGM motion if you are not a committee member?

Question: Our chair wrote to the caretaker advising he’s not allowed to attend the AGM. Can they do this?

We operate under the Accommodation module. Our chairperson recently wrote to our caretaker advising he’s not allowed to attend our AGM. Our caretaker isn’t a lot owner. As the caretaker is automatically a non-voting committee member, can the chairperson and/or the committee do this?

Answer: The caretaker should look at being appointed as representative of a lot owner.

The AGM is for lot owners and their representatives. In one sense, the caretaker is the same as what we (lawyers) would be if we were acting for the body corporate on legal issues. A third party engaged to provide services, and the body corporate lawyer has no automatic right to attend general meetings either.

Having said that, the caretaker clearly has a far tighter (and likely longer term) relationship with the body corporate, so to me, it would make sense most of the time to have them invited along.

If the committee doesn’t want them there, and the caretaker wants to go, the caretaker should look at being appointed as some form of representative of a lot owner. That’s how non-attending owners get represented.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in the November 2024 edition of The QLD Strata Magazine.

Question: Leading up to the meeting, can all submitted motions be condensed onto a one-page summary voting sheet listing the motion, “Yes,” “No,” or “Abstain” and a short description?

Motions for the AGM can be up to 15 pages long and are received by email. Many owners don’t have the time to come to the meeting and don’t vote by email because it requires printing out all the pages, filling them in, scanning them, and then returning them. Can the motions be condensed onto a one-page voting sheet with the motion number and “Yes,” “No,” or “Abstain” printed beside them on the same line with a short three- or four-word description?

Answer: Your scheme needs to implement online voting. It’s so much easier for voters. If your manager doesn’t offer this, you should ask why.

The real answer to your question is that your scheme needs to implement online voting. It’s so much easier for voters. If your manager doesn’t offer this, you should ask why.

That said, there is no fixed format for presenting voting papers. I have seen examples of condensed voting papers along the lines you have mentioned. Are these legal? You may not know until anyone challenges them, and the answer will probably depend on how you present the rest of the information required in an AGM document.

If you are talking about sending out a one-pager AGM notice/voting paper with no other documentation, you will likely find yourself in trouble quickly. However, if you send out the condensed voting sheet along with the full motions, explanatory notes and other required documentation in a package that is clear and easy for owners to understand, that may be OK. It’s hard to be definitive without looking at an example, but variations of this are what happens with most notices as explanatory notes and supplementary materials are often separated from the motion and voting section of the document.

As a next step, you may want to do is speak to your body corporate manager. Explain your concerns with the notice and see if they can make any changes. It’s certainly the case that the documentation should be as clear as it can be.

I would express some concerns over the rationale behind your question – that owners don’t vote because they can’t deal with the documentation. While I’m sure this is the case for many people, owners need to understand that when they buy into a body corporate complex, they are taking on a series of financial and legal responsibilities that come with that. The AGM is the key point each year where scheme policies are established. Going through the paperwork may be complicated or boring, but it is also necessary to regulate your home and investment. It’s absurd to think that every year owners will spend countless hours refining their car insurance, selecting an internet provider and agonising over which socks to buy on Temu, but because, as you say, there are too many voting forms to print, will casually shrug off the responsibility for a property that cost them hundreds of thousands of dollars.

There’s a complicated psychology behind this process, and changing opinions isn’t easy. Making the voting process easier has a part to play, and that’s why I recommend online voting. Still, you might also consider contacting owners at AGM time and encouraging them to participate. A push in the right direction can sometimes make a big difference.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #707.

Question: If owners have already approved a sinking fund budget for an amenity, can a subsequent motion to spend up to double that amount on improving the same amenity be allowed?

Section 98 (1)(a)(i) of the BCCM Standard Module states that a person chairing a general meeting must rule a motion out of order if the motion, if carried, would conflict with, amongst other things, “a motion already voted on at the meeting”.

If owners have already approved a sinking fund budget for an amenity and a motion is proposed to authorise capital expenditure for improving that amenity up to double the budgeted amount, should this motion be ruled out of order?

Answer: There is a difference between a motion that approves a budget and one that approves expenses.

No. There is a difference between a motion that approves a budget and one that approves expenses. Budgets are simply estimates that are adjusted based on overspending or underspending at the end of a body corporate’s financial year.

Accordingly, the motions do not conflict – the body corporate would, at some point, need to recover any spending in excess of what was budgeted for (provided there were no other costs which were equivalently underspent on) through a special levy, at the following year’s annual general meeting to recover the deficit or amending the existing budget that was approved.

This position was confirmed in Mountainview [2003] QBCCMCmr 308:

“…the body corporate believes that it has sufficient funds to undertake the proposal contemplated in either motion 9 or 10, and has not proposed a special levy. I consider this is all within the contemplation of the legislation. This office does not undertake any “big brother” or overseeing role of ensuring that a body corporate has sufficient funds to undertake its proposals. Bodies corporate are independent entities responsible for self management…”

Liam Boudin
Mahoneys
E: lboudin@mahoneys.com.au
P: 07 3007 3724

This post appears in the August 2024 edition of The QLD Strata Magazine.

Question: The committee put a motion to the body corporate for major works up to estimated costs based on a quote. They would decide on the contractor once more quotes were received. The motion passed. Was the motion valid?

At our AGM, the committee put a motion to the body corporate for major works. The committee provided no quotes to the body corporate, but they did provide an estimated cost that exceeded committee and major spending limits. The committee sought body corporate approval up to the estimated cost and advised it would subsequently obtain two or more quotes. The committee would then decide which quote to accept. The motion passed. Was the motion valid?

Answer: The motion would appear to be invalid.

On balance, the motion would appear to be invalid. However, it is difficult to conclusively determine this without reviewing the agenda in detail.

Section 163 of the Accommodation Module provides (our emphasis):

1. This section applies if—
   
   1. a motion to be moved at a general meeting of the body corporate proposes the carrying out of work or the acquisition of personal property or services, including the engagement of a body corporate manager or service contractor, but not including the engagement of a service contractor who is also, or is to be, a letting agent; and
   2. the cost of giving effect to the proposal is more than the relevant limit for major spending for the community titles scheme.
2. The owner of each lot must be given copies of at least 2 quotations for carrying out the work or supplying the personal property or services.

5. Copies of the quotations or, if voluminous, summaries of the quotations and advice about where the complete documents may be inspected, must accompany the notice of the meeting at which the motion is to be considered.

Based on the information provided, it would appear that the motion does not:

1. identify the relevant third party contractor proposed to carry out the works;
2. provide any details about the scope of works; or
3. provide copies of any quotations, which owners are invited to consider as part of the motion in contravention of section 163(5) of the Accommodation Module.

Without including these three matter in the agenda, it would be difficult for the motion to be considered valid.

Liam Boudin
Mahoneys
E: lboudin@mahoneys.com.au
P: 07 3007 3724

This post appears in the July 2024 edition of The QLD Strata Magazine.

Question: I’m concerned about some AGM motions put forward by the committee. I’ve expressed my concerns. Can the chair alone invalidate resolutions/motions put forward?

At a previous AGM, I was told it was too late to question account anomalies.

In the latest AGM information, one resolution put forward by the committee (on a very controversial matter) contains incorrect information. On another motion to amend the service contractor’s contract, the common practice of having this looked over by our legal firm was waived. I have noted a variance from the original contract.

Having expressed my “concerns” before the actual AGM, I am still being told that both matters remain to be voted on.

Surely, the correct procedure would be to advise owners their motions are withdrawn BEFORE the AGM takes place.

Otherwise, they will be voted on by owners who don’t intend to attend the AGM and are unaware of the objections I will be raising.

Can the chair (alone) invalidate resolutions/motions put forward?

I fear that an “uninformed” majority vote will see “items” approved. If approved, how do I get them overturned?

Answer: You are entitled to your vote, and others are entitled to theirs. If you are unhappy with what people decide, you can challenge decisions after the fact.

If a motion is out of order, the chair must rule it out at the meeting.

In a perfect world, logic holds that all motions that are not ruled out of order must be legitimate to vote on.

We don’t live in a perfect world, and there can be many interpretations of whether a motion should be included.

Generally, and as per the BCCM website: Running an annual general meeting, a motion must be ruled out of order if:

• the motion, if carried, would
  
  • conflict with the legislation or the body corporate by-laws
  • conflict with another motion already voted on at the meeting
  • be unlawful or unenforceable for another reason
• the substance of the motion was not included on the agenda for the meeting.

Then, the person chairing the meeting must give reasons for ruling a motion out of order, which must be recorded in the minutes.

And, those who go to the meeting and are entitled to vote may, by ordinary resolution, reverse a ruling.

In your case, it seems you believe the motions should be out of order, but others don’t. I think it is reasonable that you have represented your concerns, but it may also be reasonable for other people not to accept them.

If the matter was serious enough, you could seek an emergency adjudication on the agenda via the Commissioner’s office. Perhaps you could also obtain your own legal advice on the viability of the motions and submit that to the body corporate. You could also obtain a copy of the roll and write to all owners advising them of your concerns.

Otherwise, you are entitled to your vote and others are entitled to theirs. If you are unhappy with what people decide, you can challenge decisions after the fact.

Regarding financial questions, I think it is reasonable to ask them. It is not so helpful to ask them from the floor at the meeting and expect the manager or treasurer to respond on the spot. They may be able to, but financial questions often require some research and reference to documents. If you ask a question from the floor, it is fair if you get a response back saying that they will have to look into it. Therefore, I think it is best to submit your questions in writing before the meeting. Good managers and treasurers should answer them. If they don’t, there may be a wider problem.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #684.

Question: Why does the AGM agenda have the details of our 22/23 insurance policy rather than our current policy held by the body corporate for 23/24?

How should we deal with the electronic voting agenda for our upcoming AGM? Why does the agenda have the details of our 22/23 insurance policy rather than our current insurance policy held by the body corporate for 23/24?

The notice of the Annual General Meeting describes the current year’s (23/24) insurance. However, the electronic voting agenda description refers to last year’s (22/23) insurance. Over 20% of owners have voted electronically. We are concerned voters may not have recognised the error.

Our body corporate manager says it doesn’t matter. The electronic voting agenda is not about our current insurance policy and it can be confirmed at next year’s AGM as well as next year’s policy. Is this correct?

Answer: Whether the insurance is in place is a matter of fact, and owners can’t really vote no to this motion.

Since the legislation changed in March 2021, insurance approval has been a committee issue, with the committee’s spending limit extended to an unlimited number so they can select the policy on behalf of the body corporate.

This was a positive change, as the timelines around insurance approvals didn’t really fit in with the legislated timelines around calling meetings. Under the old system, if schemes got their insurance renewal details two weeks before the renewal date, arranging an EGM with a minimum 21 days’ notice for owners to vote on it was impossible. This put many schemes in breach of the legislation, and the change in the law was a practical measure to implement what was already the default practice of the committees making the approvals.

However, one side effect of the change was that it put the traditional insurance motion in a bit of limbo. There is still a requirement to declare the insurance at the AGM, but it is no longer the case that owners are voting to approve the next insurance policy. To resolve this, most body corporates have generally settled on having a motion asking owners to confirm the current insurance is in place.

At some level, this motion may be superfluous. It is a matter of fact whether the insurance is in place, and owners can’t really vote no to this motion – but it is a reasonable vehicle by which details of the insurance policy can be communicated to owners.

As such, while there may be some issue with the notice duplicating previous insurance information, the manager may be correct in stating that this impact is minimal. Nothing really changed. It is the committee’s right to choose the policy, and once it is in place, it is in place.

Still, you may well be within your rights to think that the manager shouldn’t just brush the matter under the carpet. Errors on meeting notices are not the end of the world, but once identified, it is usually best practice to make the error known to owners and clarify with the correct information. This could be important with insurance as while owners might not select the policy, they still need to be clear about what level of coverage they have. Once the correct information has been presented, owners can still change their votes if needed, or the chair could rule the motion out of order. Here, perhaps a letter to owners advising of the issue and providing the correct details of the insurance may have been a better way of handling the situation than simply saying it doesn’t matter that much.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #679.

Question: Do motions have a timeframe? Is the motion still invalid if the original quote is no longer valid?

How long are committee and body corporate motions valid for? The committee in my eight lots, standard module, BFP scheme in QLD has put forward the occasional pest control or maintenance motion with quotes and a job description. Regularly, considerable time passes before the work is carried out – or at all.

Similarly, the body corporate has passed a motion for maintenance work with a quote but no timeframe. The work hasn’t been done seven months later. Is a timeframe applicable if none is mentioned in the motion? If the original quote is no longer valid, is the motion valid?

Answer: Unless the motion specifically states a time period, there is no definite timeframe in which a motion must be concluded.

Unless the motion specifically states a time period, there is no definite timeframe in which a motion must be concluded.

However, when a motion is passed, there is a clear expectation that it will be done, and when it comes to matters like arranging pest control, most people would imagine that the work would be arranged quite quickly after the motion is confirmed. After all, all that is required here is to send a work order to the contractor.

The fact that this is not happening suggests some dysfunctionality on the part of the committee or perhaps a resistance from the committee to adhere to the requirements of the body corporate. Your scheme only has eight lots, so it may not be too hard for you to work out the reason or communicate your issues to the committee. Maybe they need a bit more support, and you could provide that. Alternatively, if they are being obstinate, it might be time for some new blood to help push matters forward.

You ask whether the motion may also be invalid if a quote is no longer valid. That could be the case if the motion approved a specific quote and the contractor no longer agrees to that cost. Depending on the situation, the committee may be able to approve a new quote, but in the worst case scenario, another vote could be required. If you are in a situation like this, that may also be a rationale to change the committee – approving a pest control quote shouldn’t be this hard, and if it is, you need to ask why.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #670.

Question: How do we vote “Yes” or “No” on a motion to have the unit complex painted with options to choose the preferred painter?

Our body corporate is voting on a motion for painting our unit complex. The motion asks whether to paint and which of the two painters is preferred. Can an owner indicate their preferred painter even though they vote no to the motion? In this case, their preference for a painter still counts if the motion passes.

Answer: They can now!

They can now! Under the former legislative regime, if you voted no to the proposed idea (i.e. paint the building), you did not have a say on who the painter was.

Under the new regime, you still get a say on the painter even if you vote no. These are now ‘same issue’ motions as opposed to the former ’motion with alternatives’.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #667.

Question: I’d like to submit a motion to reduce levies by $100 per quarter. How do I word the motion so it’s not ignored?

I would like to submit a motion proposing we reduce levies by $100 per quarter from 1 December 2023. Most owners have experienced a significant rise in costs. Due to poor workmanship, court action has resulted in $300,000+ not being paid to a company. Approximately $150,000 is needed to repair the failed work, which leaves $150,000 unallocated. How do I phrase the motion so it’s not ignored or thrown out?

Answer: To present an alternative motion, you should also present an alternative budget.

It’s tricky for individual owners to make propositions like this because the levy motions should be associated with a budget. To present an alternative motion, you should also present an alternative budget. However, it will be hard for most owners to put a credible budget together without the help of the treasurer or body corporate manager. If you can do it, great. Perhaps your body corporate manager can give you some documentation on the current budget to assist, but if you can’t put an alternative budget together with the proposal, any motion you present may struggle to get traction.

That being the case, you should consider alternatives.

As a starting point, you could contact the committee or your body corporate manager to see what they think about your proposals. The situation sounds complicated, and they are probably looking at different options. It may be helpful to them to have an idea of what owners are thinking.

Perhaps you could submit a motion that doesn’t look to change the whole budget but just some aspects related to the construction works done. You ask about specific wording around this, but that is not the kind of thing that we can really advise on here – if you need help, it might be worth contacting a strata solicitor.

Otherwise, if the budget is presented to owners at the AGM and you don’t like it, you can always vote “no” to the relevant motions. If enough owners agree with you and the motions presented in the notice are defeated, owners at the meeting can vote to raise or lower the presented budget by up to ten per cent. Of course, to get an action like this through, you need other owners to agree with you, so you might have to be in touch with other owners before the AGM.

You may also consider nominating for the committee. Ultimately, it is easier to influence this type of discussion as a committee member than a regular owner. It might not change this budget, but you can influence future decision-making.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in the October 2023 edition of The QLD Strata Magazine.

Question: Our committee is delaying our AGM indefinitely so they can continue with the current committee to address ongoing building issues. Is this reasonable or legal?

Our AGM is due by the end of August. The committee advised they were delaying it until the end of September, one month past the required timeframe, so they could continue with the current committee to address ongoing building issues.

We have been advised there will be a further delay for the AGM, and they have provided no date.

They acknowledge in writing this is not legal and not in accordance with the BCCM Act. They have not applied for an extension.

Is it reasonable or legal for the committee to delay the AGM without consulting all owners? What can we do?

Answer: AGMs must be held within three months of the end of the financial year.

There is a legislated time frame in which AGMs must be held – three months after the end of the financial year. There is an expectation that schemes adhere to that.

There can be various complications around delaying, particularly with the issuing of levies, but it is not uncommon and not a disaster when a delay happens, provided there is an intention to move forward and call the meeting.

It sounds like the committee may be trying to do the right thing for the building, but perhaps what started as a good intention is now causing a problem for the scheme. Have you let them know you are concerned and think the AGM should proceed ASAP? It may just be that they need a push in the right direction, and if a couple of owners voice a complaint, they might move forward. Maybe you could tell them that you appreciate their work but that even if there is a change to committee members, this shouldn’t unnecessarily stop building works. Presumably, these have been approved, so changing committee personnel shouldn’t make a difference. If some committee members were heavily involved in the works, they would stay on the committee if reelected or could continue providing advice and assistance on an informal basis.

If the committee simply refuses to call the meeting, the matter might be a bit harder. You could make an application to the commissioner’s office, but it may take time to resolve, by which time the meeting may have been held. As an alternative, maybe you could provide a formal letter advising of the breach of legislation, advising of the committee’s code of conduct requirements, and that, while the delay may be helping the building works, it is also denying other people their rights to vote on scheme affairs and be nominated to the committee. You could get a copy of the roll, circulate it to all owners and see what happens.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in the September 2023 edition of The QLD Strata Magazine.

Question: Our AGM included motions for engaging a new body corporate manager. The motions were presented in a confusing manner and I believe they should be ruled out of order. What do I do?

For our recent AGM, the agenda shows the committee submitted two separate motions related to the engagement of one of two body corporate management companies. The supplied voting paper shows the motions as a group of same-issue motions. Further, one of the motions includes some other unrelated motions to be voted together in one decision with ordinary resolution. Each voting paper refers to an explanatory schedule.

Should both motions be ruled out of the order? If so, how do we deal with a situation like this at the general meeting?

Answer: If a motion is out of order, it must be ruled so by the chair.

It sounds like a complicated scenario. You could contact your Secretary/Body Corporate manager and ask them to issue a clarification or possibly reschedule the meeting with a new notice being issued.

Otherwise, if a motion is out of order, it must be ruled so by the chair. As per the BCCM website: Running an annual general meeting.

Ruling motions out of order

A motion must be ruled out of order if:

the motion, if carried, would
• conflict with the legislation or the body corporate by-laws
  • conflict with another motion already voted on at the meeting
  • be unlawful or unenforceable for another reason
  • the substance of the motion was not included on the agenda for the meeting.

The person chairing the meeting must give reasons for ruling a motion out of order, which must be recorded in the minutes. Those who go to the meeting and are entitled to vote may, by ordinary resolution, reverse a ruling.

If you believe those conditions have been met, you can write to the chair advising them why you believe the motion is out of order and reminding them of their obligations.

Failing that, you may have to go to the Commissioner’s office if the matter is serious enough.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #658.

Question: If a committee had no AGM the previous year but continued to act as a committee, is this unlawful? Could I raise this in conciliation?

Answer: An AGM must be held each year.

As the name suggests, an annual general meeting (AGM) must be held each year. At each AGM, all committee positions become vacant and the committee for the following year elected. It can be the same set of people, but the AGM must still be held and positions declared vacant first.

If your scheme did not have an AGM and the committee simply continued on from the previous AGM, then I would struggle to see how any of that was valid. If a scheme is not holding its AGM, that suggests it is dysfunctional and may require the appointment of an administrator. In some cases, a scheme might hold its AGM ‘out of time’ (i.e., outside of the timeframe in which it is meant to be held) and they can seek an adjudicator’s order for that to occur. Usually the ‘out of time’ period is relatively small and there is a reason for it.

There is absolutely no scope for a committee to decide not to hold an AGM simply because they do not want one to be held. Decisions purportedly made by a committee where no AGM has been held, may be invalid also.

Exceptions to the AGM rules may apply for certain two-lot schemes.

This is not legal advice and is general information only.

Chris Irons
Strata Solve
E: chris@stratasolve.com.au
P: 0419 805 898

This post appears in Strata News #647.

Question: In our building, pets aren’t allowed on common property. How can I propose a motion to create a bylaw that changes an unused space into a dog friendly area?

Our current bylaws do not allow pets in any common areas. We have a large common area in our complex that has never really been used. It is not easily accessible and some lot owners do not know this area exists.

How can I propose a motion to create a bylaw that changes the unused space into a dog friendly area?

Answer: There are a number of aspects you might consider to help ensure your motion is successful, or at least reasonably considered.

All owners are entitled to make submissions for consideration to either committee or general meetings. So, at a basic level all that is required is to draft the requisite motion and submit it to the secretary, usually via the body corporate manager, for it to be voted on at the next relevant meeting.

In practice, there are a number of aspects you might consider to help ensure your motion is successful, or at least reasonably considered.

Immediately, it is worth noting that the Queensland Government has announced it will be changing legislation to make pet ownership in strata schemes easier. For now that is about all we know, but the presumption is that the change will be coming in sooner rather than later and whatever changes are made will have an impact on your current by-laws. As the issue doesn’t seem urgent, you might take a wait and see approach as the matter may resolve itself or become clearer in the near future.

Otherwise, changing a by-law will require approval at a general meeting, most likely by a special resolution. We don’t know the wording of your current by-law, but you say that it states that pets aren’t allowed on common property. If so you might want to consider whether that law is reasonable or enforceable. Perhaps sections of the by-law may need to be repealed. Maybe, the by-law just needs to be altered – sometimes there are clauses that say pets must be carried on common property so maybe the wording just needs to be changed. Or it might be that a completely new pets by-law is required.

Whether you are changing the existing by-law or drafting a new one, it is best for this work to be done by a specialist strata solicitor to ensure that any new by-law is valid and enforceable. You can engage a solicitor individually, but the work they do comes at a cost so most people prefer the legal fees are paid by the body corporate, as the by-law affects all owners.

On that basis, the best thing to do is contact the committee and ask if they would like to pursue the idea – you can offer to assist with the legwork if that helps. Start by sending an email outlining your proposal to the committee via the body corporate manager or straight to the secretary. Different buildings will run in different ways, so see what the response is and follow up from there. To make the matter concrete, you may need to submit a committee motion. This is a formal motion that must be voted on by the committee to determine the course of action. The motion can propose that the committee engage a body corporate solicitor to draft a proposal to amend the current pet by-laws to allow for pets to be on the common area. You could contact a law firm in advance for a quote to do the work and submit this with the motion. It’s probably a good idea to start thinking through factors such as whether the area is safe for pets and how you might handle issues such as pet safety and waste if animals did start using the area.

If the committee agree, then great. The lawyer can be engaged, provided costs are within the committee spending limit, and they can draft a relevant motion ready to be put to owners at the next general meeting.

If the committee don’t agree, you can still pursue the matter individually. However, it is probably worth getting an understanding of why people were against the idea. To have a new by-law passed, you will need at least two-thirds of owners attending a vote to agree with the proposal. If the committee don’t agree with the plan, that could be a tough ask. It may just be that while you like the idea, others don’t and you have to accept majority rule.

If you want to go it alone, you could engage a solicitor to draft the relevant motions for you and submit those to the next general meeting. Owners can vote and a decision can be made.

A cheaper option, or one that allows you to test the waters a bit further before incurring a cost, might be to submit a more generic motion requesting that the body corporate engage a solicitor to draft the relevant motion to change the by-laws. The proposal to do this would be by ordinary resolution and if passed would give a good indication that owners were in favour of the idea. The problem with this method is that it is the long way around. You have to wait for a general meeting to have the motion considered and then wait for the next general meeting after that for the by-law proposal to actually be voted on. Depending on how often your scheme has meetings you could be the best part of two years away from having the matter formally considered. If possible it is better to build a consensus through the committee first.

Lastly, one alternative that may be available is that you could ask the committee to run an informal poll of the body corporate to see if the idea has support. Lots of body corporate management companies have technology that allows this kind of question to be put to owners fairly easily and even if the response isn’t a formal one, it can be a quick way of taking the temperature of the body corporate and thereby give the incentive to the committee to carry the idea forward.

The BCCM website has more info on making a submission to your body corporate.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #644.

Question: Is the due date for lodgment of documents extended to the next working day ie Monday if the deadline is a Friday?

Would s.38 (2) of the Acts Interpretation Act 1954 (Qld) mean that the due date for lodgment of documents eg owner motions and cmttee nominations would be extended to the next working day ie Monday if the deadline is a Friday?

Answer: Owner motions and committee nominations could be submitted on either the Friday prior to the body corporate’s EOFY, the weekend, or the Monday following the body corporates EOFY.

Yes – section 38(2) of the Acts Interpretation Act 1954 (Qld) relevantly provides that if the time, or last day of a period, calculated forwards that is provided or allowed by an Act for doing anything that falls on an excluded day (a weekend), the time, or last day, is taken to fall on the next day later that is not an excluded day.

Therefore, owner motions and committee nominations could be submitted on either the Friday prior to the body corporate’s EOFY, the weekend, or the Monday following the body corporates EOFY. Adjudicators have taken this approach when calculating time frames and can be seen in the decisions of North Shore Village [2012] QBCCMCmr 246 and Couran Cove Marine Apartments [2022] QBCCMCmr 374.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #623.

Question: If the end of the financial year falls on the weekend, do motions and nominations have to be submitted by the close of business on the last business day of the financial year?

If the end of the financial year falls on the weekend, do motions and nominations have to be submitted by the close of business on the last business day of the financial year? Can the committee secretary hold any nominations they receive until the AGM is about to be called or must they be submitted to the systems manager, who would be organising the AGM, before the end of the financial year?

Answer: Motions and nominations can be submitted at any time before the Body Corporate’s end of financial year.

Motions and nominations can be submitted at any time before the Body Corporate’s end of financial year (even if this means submitting the motion or nomination on a weekend).

The modules then provide that a motion or nomination submitted to the secretary by a member of the body corporate will only be included in the agenda for an AGM only if the secretary receives the motion before the end of the body corporate’s financial year immediately preceding the meeting. Accordingly late motions cannot be included (although the committee can decide to include its own motions after the EOFY).

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #619.

Question: If an owner submits a proposal and the majority vote to reject the proposal, is the Committee obligated to explain why it has been rejected?

If an owner submits a proposal to the Committee meeting, and the majority vote to reject the proposal, is the Committee obligated to explain why it has been rejected other than “rejected by majority vote”?

If the answer is yes they must provide context. How are they to communicate this context – through meeting minutes, or any other form of communication?

Answer: The Committee is required to make reasonable decisions and if it doesn’t provide some explanation for decision making, the more likely it is that the decision will be seen as unreasonable.

Technically, the Committee is not required to provide an explanation – the motion should be self-explanatory and all the committee needs to do is vote on the matter and record the vote.

However, the Committee is required to make reasonable decisions and if it doesn’t provide some explanation for the decision making the more likely it is that the decision will be seen as unreasonable. Owners might challenge the decision via the Commissioner’s offer and it might be overturned. There may be some community rancor if it was felt that the Committee was just making high-handed decisions.

As such, it would usually be recommended for some explanation to be provided. It doesn’t need to be lengthy, but should contain a rationale as to why the proposal was not appropriate. This might help provide guidance to the applicant and other owners as to what is required to submit a successful motion in the future. Hopefully, it will also help committee-owner relations. If owners can see that the Commitee have reasonably considered the proposal, they are more likely to be happy with the job they are doing.

As to whether the advice should be formal or informal, there is no requirement either way as there is no requirement to give the advice, but good Committees will judge the situation and make a choice in the best interests of the scheme and applicant. If they are seeking to set a precedent or baseline for future applications, it might be best to put the advice in the minutes so it could be referred to in the future. If it was a more delicate matter, a quiet word might suit.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in the October 2022 edition of The QLD Strata Magazine.

Question: We have two motions about the appointment of a Body Corporate Manager for our AGM. Can these motions be combined into one that lists all four options?

We have two motions about the appointment of a Body Corporate Manager for our AGM. One was submitted by the committee giving a choice of three options. Another was submitted by an owner to appoint a different BCM.

Can these motions be combined into one now giving a choice of four options? If not, does it make much difference about the order in which they are presented?

Do options motions have to be decided by “first past the post” or can they be done on a full preferential system as in federal / state elections, or can the preference mechanism be something else again (like optional preferential or a points system whereby first preference receive one full vote and lower preferences receive a partial vote – like second preferences receive a 1/2 vote etc).

Answer: All of the options received should be listed under the same motion known as a ‘Group of the Same Issue’ motion.

All of the options received should be listed under the same motion known as a ‘Group of the Same Issue’ motion.

The motion allows owners to choose between a range of comparable options.

The voting mechanism for these motions is essentially first past the post – the option with the most votes wins.

If there is a tie, matters become more complicated as you also have to count votes against each motion – so it is important for owners to vote not just on what they want but what they don’t want. Ultimately, if two proposals have the same number of votes the matter can be decided by a game of chance.

That all sounds good, but if you know anything about politics you will know that first past the post voting can produce some wonky outcomes. This is often the case when one group of voters band together to favour one position. In first past the post votes, that group may end up with their preference being selected even if it is not the overall preference of the majority who have spread their votes across a range of other options. Preferential voting helps eliminate this scenario, but is not available here.

For that reason it may be worth considering how many proposals are being put forward and reducing these so that owners can identify a clear preference. In practice, this likely means the Committee being selective with the options they put forward although there is room for negotiation with owners who have made submissions.

When it comes to selecting body corporate managers, I would suggest that three options are plenty and two may be better. That’s not always possible, but the more defined the options are the easier it is for people to decide and be satisfied with the outcome.

For more on Group of the Same Issue Motions, the BCCM has this presentation with a flow chart on the decision making matrix: Explaining group of same-issue motions.

LookUpStrata has this video on the issue: An Example of a Same Issue Motion (previously Motions with Alternatives) with Todd Garsden from Mahoneys.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in the October 2022 edition of The QLD Strata Magazine.

Question: Our caretaker has had his lawyer submit two motions. They have been lodged via an owner. Is this reasonable and fair for all owners and the body corporate?

Answer: That’s the way the system works.

Owners are entitled to submit motions as they choose. They can put up motions to vary management rights agreements along with anything else – approvals, change of by-laws etc etc etc.

The ultimate decision maker remains the body corporate in general meeting.

We sometimes have owners put up motions to engage us because they have a committee that chooses not to. That’s the way the system works.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News.

Question: If an AGM motion was submitted before the end of the financial year (31 July), can it be amended (without change of substance) after 31 July but before the AGM Meeting notice and voting papers are issued?

Answer: A motion that has been submitted by a lot owner prior to the EOFY can be amended up until the agenda is called as long as the amendment does not change the overall intent or meaning of the motion.

A motion that has been submitted by a lot owner prior to the EOFY can be amended up until the agenda is called as long as the amendment does not change the overall intent or meaning of the motion.

This was discussed in Island Close [2016] QBCCMCmr 267 between paragraphs 36-43 and in Central Plaza Apartments Port Douglas [2020] QBCCMCmr 433 where the adjudicator relevantly provided:

[84] The applicant makes an issue of the two ‘amended’ motions, and that the committee failed to list the new versions in the agenda for the AGM. He says the he was told by the committee they could not do so, effectively because the financial year had ended, closing his opportunity to submit motions for the meeting. Certainly, an owner must submit before the end of the financial year, but there is nothing in the legislation preventing a submitter later making amendments and a committee receiving them.

…

[88] There will be practical reasons why proposers of motions cannot be permitted to make multiple amendments, for example, the agenda material may already have been distributed. One might also think of situations where owners take perverse advantage of such a situation, making amendment after amendment, frustrating the integrity of the meeting process. Like many things in this confusing labyrinth of legislation dealing with bodies corporate, it is circumstance dependent.

[89] In this case, the applicant was entitled to make amendments. Whether the committee was required to include the changes in the AGM agenda depends on the circumstances of the case. I am satisfied it is of little consequence. The original motions are not fundamentally different to their amended versions and lot owners can choose whether to support them, or not. If I am wrong I see it is a minor irregularity that is unlikely to misrepresent the applicant’s positon, or mislead voters, but of course I cannot predict such an outcome.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #596.

Question: Are lot owners required to submit quotes along with their submitted motion if the proposal is less than the major spending limit?

If a Queensland lot owner submits a motion for the AGM, are they required to obtain quotes if the cost of giving effect to the motion/proposal is more than the relevant limit for major spending for the community titles scheme?

Thus, where the major spending limit is say $300,000 and the cost of giving effect to the owner’s motion is, say $50,000, does the owner need not obtain quotes? Or is it sufficient to include, in the motion, a statement that the cost be capped, or not be more than, say $60,000?

Answer: If quotes are not submitted, even if the motion is approved, the works will not be fully approved.

To properly authorise a scope of works or similar, it is important that quotes are considered irrespective of the cost. If insufficient detail is included, the motion will be ruled out of order. This is so that owners are made aware of what they are actually approving.

Adjudicators have supported this position in Cairns Aquarius [2018] QBCCMCmr 447 by relevantly providing:

“Firstly, I consider the principles adopted in Katsikalis are relevant to the proposition put to owners in Motion 3. As stressed by the Court of Appeal, “It is important that the rights to common property of bodies corporate are not removed unheedingly or inadvertently and to the detriment of their members”. In this context, it is significant that the motion did not detail: the improvements proposed to be made to common property; how those improvements would affect common property; or whether the making of those improvements would amount to a disposition of common property”

If quotes are not submitted, even if the motion is approved, the works will not be fully approved. It will just be an indication of the support for a project. This was confirmed in Redlynch Grove Apartments [2009] QBCCMCmr 195 (our emphasis) by relevantly providing:

As mentioned above, Motion 3 was that independent legal advice is to be obtained by the body corporate to investigate the past conduct of the current committee but this motion was ruled out of order on the following grounds:

• It does not name a legal adviser or provide a mechanism for choosing a legal adviser;
• It did not include quotes to enable the body corporate to approve the expenditure;

There is no provision for this expenditure in the current budget and there was no mention of a special resolution to raise funds for this proposal.

I believe it is quite plausible that the purpose of this motion was to make a preliminary decision as to whether or not legal advice should be obtained and was not an expenditure motion. In the event that the motion was carried, a further motion to engage legal representatives could be placed on the agenda for the next general meeting. Accordingly, I do not believe that this motion should have been ruled out of order.

If a total cost is approved but there is insufficient detail as to who is being engaged and on what basis, a further quote would need to be considered.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in the August 2022 edition of The QLD Strata Magazine.

Question: I put three motions forward but the background to the motions was not included. Is it the role of the Secretary to check the AGM papers include motions plus submitted information before they are circulated?

We have our AGM coming up next week and I put three motions forward but the background to the motions was not included when the information was sent out. Now owners won’t understand the rationale behind my motions being put forward and therefore probably not vote for them, which has put me at a disadvantage.

Is it the role of the Secretary to check the AGM papers include motions plus submitted information before they are circulated?

Answer: The onus is on the submitter.

As per the BCCM website, a motion must:

• be in writing
• include any necessary quotes and other documents
• be clear
• be enforceable

You can also include an explanatory note of up to 300 words.

In this case you mention ‘background information,’ but it is not clear how this was presented and it may have been omitted if not submitted in a valid format – that is, listed explicitly as an explanatory note.

The onus on doing this is on the submitter. Once a submission is received, the secretary is required to list it as presented. They are not responsible for formatting and organising owner’s motions as suggested. If they did so it implies they have some right of interpretation of the motions which they do not.

It sounds like there may be a bigger story here. In a positive situation you might have received help on your submission from the body corporate manager or even worked on it with the committee. Owners aren’t necessarily expected to be experts and help is usually available. Did anyone follow up with you for clarification? It’s not required, but if a scheme is generally harmonious you might expect a communication like this.

However, not all situations are positive and, for a range of reasons, you may not have the support of others in your body corporate. That can happen, but you need to be conscious of that and ensure that any submissions you make stay within the guidelines in order to ensure they are presented in the way you want.

As a next step you might ask your body corporate manager about why the paperwork went out the way it did and what you need to do moving forwards.

See the BCCM website for more on how to submit a motion: Queensland Government: Submitting motions

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in Strata News #595.

Question: Our BCM require 3 months to prepare for an AGM. All motions must be submitted before this cut off date. How can we ensure motions are relevant if quotes for maintenance are only valid for 30 days?

Our BCM has stated that they require at least 3 months to prepare for an AGM, and have said that all motions must be submitted before the cut off date. How do we comply when quotes for any big maintenance issues in the complex are usually only valid for 30 days?

Also, our Budget meeting is scheduled for mid-March. Shouldn’t agenda and motions be submitted just following the budget meeting? Can we put forward a motion to alter the meeting dates appropriate to the issues within our complex?

Answer: Submit the outdated quotation and include provision in the motion in the event that the quotation increases at the time the motion is approved.

Each body corporate has its own financial year (distinct from the usual June/July financial years). This date is important for submitting motions and the timing of the AGM.

The legislation provides that:

1. In section 83 of the Standard Module:

   An annual general meeting, other than the first annual general meeting, must be called and held within 3 months after the end of each of the community titles scheme’s financial years.

2. In section 98(6) of the Standard Module:

   A motion submitted by a member of the body corporate may be included on the agenda for an annual general meeting only if the secretary receives the motion before the end of the body corporate’s financial year immediately preceding the meeting.

The 3 month period is usually used to its fullest extent as it does take time to prepare the AGM materials. Often this is because the manager is relying on third parties (such as accountants) to produce the required financial reports).

Although a lot owners submitted motion is restricted by the body corporate’s financial year date, the committee has the ability to include motions on the agenda up until the meeting notice is finalised. This may assist with the timing of quotes issue.

The timing issue of quotes has always been a difficult one. In most cases the best approach will be to submit the outdated quotation and include provision in the motion in the event that the quotation increases at the time the motion is approved.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #542.

Question: If an owner submits a motion to the committee with explanatory notes, what must be shown on the committee meeting agenda?

If an owner submits a motion to the committee with explanatory notes, what must be shown on the agenda for the committee meeting considering the motion? The full motion and explanatory notes or simply “Owners motion – Lot xx”?

What information should be provided in the minutes? We are a Standard Module.

Answer: The notice to call a committee meeting must include an agenda stating the substance of issues to be considered at the meeting.

An explanatory note for a committee motion is something that has existed only out of custom as opposed to general meetings which specifically reference the existence of an explanatory note in the legislation.

Agenda

The notice to call a committee meeting must include an agenda stating the substance of issues to be considered at the meeting. The substance does not need to list in full the motions and explanatory note, but the agenda must detail the subject to be covered at the committee meeting.

In Coronation Gardens [2007] QBCCMCmr353 the adjudicator relevantly provided:

“Fine detail is not required, but enough information for any lot owner to see that a subject in which he or she has an interest will be discussed eg. ‘Lot 12, application for pergola…”

Minutes

The committee must ensure that full and accurate minutes of its meeting are taken along with a record of motions.

The phrase full and accurate and record of motions is elaborated upon at section 71(6) of the Standard Module and includes the words of each motion voted on at the meeting.

Accordingly, there is no requirement to include an explanatory note – the requirement is limited to the words of the motion. However, if the committee chooses to include the explanatory note, it must be included in full.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in the December 2021 edition of The QLD Strata Magazine.

Question: We’d like to replace all windows. What type of motion will be required and how many votes are needed for the motion to be passed?

Our committee is working on a proposal to upgrade the exterior of the building by replacing all windows, which will incur a cost of several million dollars. There are 66 apartments. The work is NOT essential and window replacement for common use areas is already provided for in the Sinking Fund Forecast.

What type of motion will be required and how many votes are needed for the motion to be passed?

Answer: The type of approval required will depend on the cost of the works.

The type of approval required will depend on the cost of the works.

There are three improvement limits that apply in the standard and accommodation modules:

In this case, there are 66 lots so if the cost of the project exceeds $132,000, which you suggest it does, a special resolution at a general meeting would be required.

A special resolution requires that the motion is only passed if:

1. At least two-thirds of the votes cast are in favour of the motion
2. The number of votes against the motion is not more than 25 per cent of the total number of lots
3. The total contribution schedule lot entitlements of the votes against the motion is not more than 25 per cent of the total contribution schedule lot entitlements for all lots in the scheme.

All three conditions must be met for the motion to pass.

Depending on your entitlements and number of people attending the meeting, that may need some mathematical configuration to work out but that is the formula to follow. Your body corporate manager should be able to calculate these for you at the meeting – although sometimes this takes some time and careful checking.

You also ask how many votes would be required. A standard quorum requirement would be 25 per cent of owners, but plans have had the capacity to change this since March this year so you should check the exact number with your body corporate manager.

Check the BCCM website for more information on this subject: Improving common property and lots.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in the November 2021 edition of The QLD Strata Magazine.

Question: If motions are for the expenditure of body corporate funds, do they always need to include a quotes?

Our body corporate manager has, ahead of our AGM, issued a notice to all owners – REQUISITION FOR INCLUSION OF MOTION ON AGENDA FOR ANNUAL GENERAL MEETING. That notice includes a footnote stating: If the motion is considering the expenditure of body corporate funds, you MUST include the cost or provide quotes.

BCCMA (Accommodation Module) Regulation 2020

S.163 Quotes for major spending decided at general meeting states:

1. This section applies if—
   
   1. . . . . .
   2. the cost of giving effect to the proposal is more than the relevant limit for major spending for the community titles scheme.
2. The owner of each lot must be given copies of at least 2 quotations…

Our relevant limit for major spending is $394,500. Most owner motions are expected to involve spending well below the ‘relevant limit’.

MUST submitters of motions obtain quotes?

The question is posed because of our 789 lots, only about 10% of owners live on site. Investor owners live intrastate, interstate and in 20 countries overseas. Their ability to obtain quotes is, in most cases, simply not possible.

Answer: If a quotation wasn’t included, the motion may still be valid, but it may not properly or fully authorise the works to be carried out.

To properly approve works, sufficient details of the works need to be included. As this is always best achieved with the actual quotation relating to the works and a motion is out of order if the substance is not included in the agenda, it is always best practice to include a quotation.

If a quotation wasn’t included, the motion may still be valid, but it may not properly or fully authorise the works to be carried out.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #514.

Question: Our Body Corporate Committee has three motions at our AGM that I believe are invalid. If they are not valid, what can I do about it?

Our Body Corporate Committee has three motions at our AGM that I believe are not legal:

1. Any owner that doesn’t live in the building is not allowed to stand for the Committee.
2. Any owner that has a Breach is not allowed to stand for the Committee.
3. Use of proxies to appoint new committee.

Over the past 6 weeks, the BCC has issued nearly 40 breaches for trivial issues against all people wishing to stand against a useless and draconian committee.

Are the motions valid? If not, what can I do about it?

Answer: If you think these motions are invalid and must be ruled out of order, the onus is now on you to do something about it.

The power to rule a motion out of order sits with the chair at the general meeting and is provided for under section 98 of the Standard Module. For example, if a motion is unlawful or unenforceable, it must be ruled out of order.

I’m not going to say that any or all of the 3 motions you’ve presented are possibly out of order or not, because that’s for legal advice and/or an adjudicator to determine. What I will say is that the onus is now on you to do something about it if you think these motions are those which must be ruled out of order. If motions pass which you think should have been out of order then you can seek to challenge those through my former office [the Commissioner’s Office].

Having said that, given your comments about a ‘useless and draconian’ committee, it seems there’s a much bigger issue and set of conflicts at play here than just a set of possibly out of order motions. You are probably better off trying to address the root cause of that conflict rather than focus on individual issues. Remember, nothing will change at your body corporate unless someone initiates it to happen and there might be several options you can pursue to make life better at your scheme.

Chris Irons
Hynes Legal
E: chris.irons@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #513.

Question: An owner has submitted a motion but the name on the motion is not the same as per the Titles office. Does this make the motion invalid?

I am the chairperson of a BCC. We have an AGM coming up. Our Body Corporate Managers have received a motion from one of our Lot’s but the name on the motion is not the same as per the Qld Land Titles Registry. Does this make the motion invalid?

Answer: It depends on whether the motion has made its way onto the agenda.

It depends on whether the motion has made its way onto the agenda.

If the agenda has been finalised and sent with the motion included, it is arguably approved by the committee and now the property of the meeting such that it can only now be ruled out of order if it:

1. Would conflict with the Act, the regulation module, the by-laws, or a motion already voted on at the meeting;
2. Is unlawful or unenforceable for another reason; or
3. Does not include the substance of the motion in the agenda for the meeting.

If the agenda has not been finalised – the committee can reject the motion on the basis it was not submitted by a member of the body corporate. However, I would caution the committee on taking this approach if the difference between the name on the motion and the owner according to the titles office is a technical one. If it is the same person, who just goes by a different name, the committee should include the motion.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in the September 2021 edition of The QLD Strata Magazine.

Question: On sending motions into meetings, how many motions can be sent by the one owner per year? Where can I see the legislation detailing this?

Answer: Six in a rolling 12 month period

You’ve got six in a rolling 12 month period. So if you send six in March of 2021, you have to wait till April in 2022, before you can submit another one.

The body corporate can also accept extra submissions, but they don’t have to. So it’s really important, I suppose for an owner to either pace themselves or really think about which motions are important to themselves before they start submitting them to the committee.

It’s a rolling 12 month period, so you can space it out and do one every two months if you really wanted. I think a lot of thought should be put in before you start burning through your limit.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in the September 2021 edition of The QLD Strata Magazine.

Question: Is the Committee obliged to comply with a motion if compliance would contravene a by-law?

At our AGM the chairman held the view that a Committee motion should be ruled out of order although a majority of committee members disagreed with that view, as did the strata manager.

Nevertheless the chairperson felt obliged to put the motion to the AGM and the motion was resolved in the affirmative.

The motion was out of order as it contravened a by-law.

Is the Committee obliged to comply with the motion even though compliance would contravene a by-law? What alternative action should be taken?

Answer: It may be worthwhile confirming that the motion is actually invalid

If the body corporate passed a motion that was invalid it would be a matter of:

1. the committee choosing to ignore the motion and seeing if a lot owner challenged the committee’s inaction in the Commissioner’s Office (where if the motion was invalid, the application ought to be dismissed); or
2. the committee (or another lot owner) making its own application to declare the motion invalid.

The second option is the preferable approach as it means the adjudicator cannot criticise the committee for ignoring motions that were passed at a meeting (which is a risk with option 1).

It may be worthwhile confirming that the motion is actually invalid before the committee chooses either of the above options.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #493.

Question: Is there a reasonable time in which the committee should respond to lot owner motions for, e.g. a request to keep a pet. Six weeks appears to be unreasonably long.

The committee now has a maximum of six weeks in which to respond to a motion put by a lot owner and extended as needed. This can be seen as a standard time to respond. Is there a reasonable time in which the committee should respond in normal operational circumstances? For example, if a request to keep a pet is made, six weeks appears to be unreasonably long.

Also, could you please go over the 21 days as a ‘no vote’?

Answer: Committees can turn around decisions a lot quicker than six weeks, but the new legislation gives them six weeks to make the decision.

Committees can turn around decisions a lot quicker than six weeks, but the new legislation gives them six weeks to make the decision. If you were expecting an earlier decision, it’s going to be very hard to get an early decision if the committee does want to take six weeks. Ultimately, what your rights are is to go to the commissioner’s office and ask for a decision to be made earlier. I just can’t say an adjudicator saying within a period of less than six weeks, that the committee is being unreasonable by taking more than four weeks.

There’s a bit of balance here where a lot owner is getting a lot more out of these regulation models by setting a deadline. I think by saying we should be taking less time than what the deadline is, you’re probably not going to get that far with how it’s going to be interpreted. I think it’s going to be very hard for an owner to force a committee to take a time less than six weeks if the committee wants to take six weeks.

Concerning how the 21 days works, it is more of a drop dead date, as opposed to a no vote. If the committee makes the majority decision within those 21 days, and it’s absolutely an approved committee decision, it’s really if some committee members haven’t put their vote in – maybe we’ve only got two answers so far and we need four to get the majority resolution, it just means after those 21 days the committee’s decision is a ‘no’ against the motion. What that does, is opens it up to the owner to go and take further action down the track.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #493.

Question: Is a motion submitted by a lot owner the same as a lot owner asking for a decision to be made by the committee?

Is a motion submitted by a lot owner the same as a lot owner asking for a decision to be made by the committee? Can a motion be a question seeking clarification of the committee’s progress on implementation of a previous action agreed to at a committee meeting?

Answer: I can’t see a request for information or asking the committee for an update or just a general question as being a motion.

That’s a really good question, and I think it’s going to have to take a lot of clarity from both owners and community members about how these things are going to be treated.

I can’t see a request for information or asking the committee for an update or just a general question as being a motion. That is really just communications to be tabled and considered by the committee.

Perhaps out of an abundance of clarity, the owner should either say if they want to be a motion or say that they don’t want it to be in motion and then it can be treated in that way. Keeping in mind is that six weeks if you do want to have as a motion, but if it’s not a motion, you obviously don’t have a deadline, but you might not be using up your cap of how many motions you can submit within that rolling 12 month period.

It’s not really up to the committee to determine whether or not your communication should amount to emotion or shouldn’t. It’s really, whether it is a motion or isn’t and I think asking a question wouldn’t amount to a motions, it’s just communications.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #492.

Question: For part five engagement, does a special resolution require an open ballot? How does it work?

Answer: The new changes allow the body corporate to put a motion on the agenda to remove the requirement for a secret ballot and allow it to become an open ballot.

For a part five engagement, if the body corporate hasn’t done anything it needs a secret ballot at the moment. This is where you engage a returning officer to count all the votes, and they’re all done anonymously. What the new changes have done is they’ve allowed the body corporate to put a motion on the agenda in advance of that taking place to remove the requirement for a secret ballot and allow it to become an open ballot.

In the next 12 months is when you’ll see a number of these threshold motions go on to flick the switch on something like that happening, and it’s really the general meeting after the next one, where you can actually see some of these changes take effect.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #490.

Question: How do a group of same issue motions look if you had various quotations and colour considerations for something like a roof repair?

We would be interested in how a group of same issue motions would look if you had various quotations and colour considerations for something like a roof repair.

For example, we have two quotations for a roof replacement as the cost is over $10,000 for colorbond roofing. We have one quotation for roof repair of around $5000. We have two quotations for roof replacement of the same product, which was an existing roof tile and that’s for $15,000 (this would be the same colour as the existing). Then we have two colour options if they go for the colorbond roofing. How would be we represent these as a group of same issue motions?

Answer: same issue motion allow the body corporate to give flexibility to a vote on particular issues without the conflict that can sometimes arise with motions with alternatives.

Really good question, and I think this is a good example of the practical help that a same issue motion set can provide because it really allows the body corporate to give the flexibility to vote on particular issues without the conflict that can sometimes arise with motions with alternatives. It really is a very simple way of achieving it, but you don’t have to worry about with motions alternatives, where essentially, you put all the motions for each option in the agenda, group them together, so that become a same issue motion, and then run through the process I briefly went through before.

You’ve got your two quotations there, because the cost is over $10,000 so that would really have contractor A and contractor B, but the good thing here is because you’re also looking at different colour options, you really have four different motions there that you want to put forward:

• Contractor A, colour A
• Contractor B, Colour B
• Then all the other combinations that can come from that.

Owners then have the ability to vote for which ones they’re okay with and which ones they’re not okay with. Then when you run through that process of the same issue motions you’re going to come up with essentially what’s the fairest result based on owner views for ‘yes’ and ‘no’ so it really brings in the ‘no’ vote quite well.

Short version is: put through all the different options that can come out and then leave it to owners to vote ”yes’ or ‘no’ for the ones they like or don’t like and then if you follow the process, you’ll get the right outcomes.

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in the June 2021 edition of The QLD Strata Magazine.

Question: Our Strata Manager says that no one except the chair is allowed to speak at an AGM. Is this correct?

AGM Our Strata Manager says that no one except the chair is allowed to speak at an AGM.

I believe, in accordance with meeting procedures that a Motion is read out by the mover of the motion who is then allowed to speak for the motion. The chair should then ask if there are any owners who wish to speak for or against the motion.

Is this correct?

Answer: In this case, the supposition that only the Chair may speak at a meeting is incorrect. However, it is also not correct that the chair has to allow owners to speak for and against a motion.

The legislation does not stipulate a template by which body corporate meetings should be conducted and as a result there can be quite a bit of difference in their conduct from scheme to scheme and meeting to meeting.

In this case, the supposition that only the Chair may speak at a meeting is incorrect. For example, owners may request that motions be amended and propose that amendment, they are allowed to request that motions be ruled out of order.

However, it is also not correct that the chair has to allow owners to speak for and against a motion. Ultimately, the main purpose of a meeting is to count votes not opinions and the Chair needs to create the circumstances under which that can happen.

Practically, most plans need to reach a mid-point between these positions. If a Chair doesn’t give owners reasonable opportunity to express themselves then the likelihood is that there will be more disgruntled owners with more complaints, legal action and so on. The Chair may also find themselves unpopular when seeking reelection – if that is a concern. If owners don’t feel that they are being given the chance to discuss motions they may simply vote against them and that can impact the capacity of the body corporate to function. What would happen if everyone voted against the motions to collect levies because the chair hadn’t allowed any opportunity for discussion on the matter?

Equally, it is reasonable for a chair to set limits as to how a meeting can be conducted and the capacity of owners to express themselves. This can mean requiring that owners maintain decorum at a meeting, that when they address the meeting they keep to the matter at hand or limiting the amount of time an individual has to speak on a matter. There is little benefit from meetings that ramble, are hostile or in which there is no significant debate beyond people making sure they are heard.

It can be a tough job, but in well-functioning schemes the Chair tends to find that balance between letting people be heard and moving matters forward.

William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924

This post appears in the March 2021 edition of The QLD Strata Magazine.

Question: Can an Explanatory Statement exceed a 300 word limit and do they have to be circulated to voters?

An owner has obtained the required 25% of owners to call an EGM about a particular issue. The meeting date has been set.

The motions to be considered have been circulated. The legislation states that the information provided to voters can be accompanied by an Explanatory Statement as long as it is no longer than 300 words. The statement has been provided but it includes a link to an attachment that is itself more than 500 words.

Is the attachment part of the 300 word limit and does it have to be circulated to voters?

Answer: Word limits in any context are sometimes tough to achieve but they are usually there for a reason and really, 300 words isn’t too onerous to comply with in my view.

This is a very good question! On the one hand, it can be argued that the note is under 300 words and that the link is merely an appendix or optional bit of extra reading. On the other hand, if by clicking on the link you get to read the actual ‘explanation’ of the motion, then surely that’s the note and it needs to be under 300 words.

I can’t, based on my rudimentary search, see any adjudicator’s orders on this specific topic, although you may wish to undertake a more fulsome search at www.austlii.edu.au. Ultimately, in the absence of any definitive legislation or ruling, the committee will need to make a decision based upon what is reasonable in this case. It might, for example, be reasonable to go back to the submitter, drawing their attention to the word limit and asking them to redraft their explanatory note to comply with that and without using the link. If they decline to do so then it’s decision for the chairperson as to whether that motion gets ruled out of order.

Let’s think of this another way: the point of an explanatory note and its word length is so that voters who otherwise know little or nothing about the motion are given a succinct and clear overview of it. That then helps them cast their vote and is the fairest way of having motions considered. Does your situation allow for that? Is it reasonable to ask voters to click on a link to get that overview? My gut feel – and this isn’t legal advice, of course – is that it isn’t. Word limits in any context are sometimes tough to achieve but they are usually there for a reason and really, 300 words isn’t too onerous to comply with, in my view.

Chris Irons
Hynes Legal
E: chris.irons@hyneslegal.com.au
P: 07 3193 0500

This post appears in the March 2021 edition of The QLD Strata Magazine.

Question: What happens if prior to a meeting date when one or more of the owners who originally requested that the meeting occur withdraw their support? This would mean that there is no longer 25% support?

Residents have submitted the required 25% of owners necessary to call an EGM. The date and venue have been determined and necessary papers including motions to be considered forwarded to owners.

What happens if prior to the meeting date when one or more of the owners who originally requested that the meeting occur withdraw their support? This would mean that there is no longer 25% support. Does the 25% requirement only apply to calling the meeting? Does the meeting still occur or is it now void and not required?

Answer: Once the meeting is called an owner withdrawing their support for the motion has no effect on the meeting.

Once the meeting is called an owner withdrawing their support for the motion has no effect on the meeting.

If the withdrawal took place before the meeting was called and the 25% was no longer reached the obligation on the committee to call the meeting would no longer exist (but the committee could still choose to call a meeting).

Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753

This post appears in Strata News #456.

Question: Does my wife’s power of attorney to me allow me to submit motions at the AGM?

My wife is the owner of our Lot as we are not joint owners and therefore I have been classified as an occupier. The body corporate has said that only owners can submit motions for the AGM.

My wife has issued to me a general power of attorney which has been lodged with and recorded by the body corporate the wording of which is:

-“To act for me for all obligations, requirements and privileges I have as an owner under the BCCM ACT QLD 1997 and the BCCM Accommodation Module Regulation 2008. To make all decisions and have all interactions on my behalf in all matters pertaining to Lot [XX lot number] within [the body corporate by name] and with [the body corporate by name] committee”.

My question is does my wife’s power of attorney to me allow me to submit motions at the AGM?

Answer: In simple terms – yes.

In simple terms – yes.

That allows you to act as if you were your wife with respect to the body corporate. You just need to make sure notice of the appointment has been formally given to the body corporate to allow you to do so.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #431.

Article: Group of same issue motions

Current regulations that apply to motions with alternatives, or motions dealing with the same issue, have caused some contention amongst body corporate residents. In view of this, it may come as welcome news that the provisions on motions with alternatives have been removed from the new regulations that will commence on 1 March 2021.

Instead, two or more motions that propose alternative ways of dealing with the same issue will now be categorised – on the agenda and in the voting papers – as a ‘group of same-issue motions’.

Under current regulations, where there are motions dealing with the same issue, a body corporate’s meeting agenda and voting papers are required to include firstly, the motion submitted by the body corporate committee that identifies the issue to be dealt with, and secondly, a list of the alternative motions received by the body corporate proposing different or alternative action in relation to the issue. If one of the alternatives requires a special resolution to pass under the regulations, all alternatives must meet that higher threshold.

Feedback from bodies corporate has been that, in some instances, a higher-threshold alternative may be submitted strategically for the purpose of making it more difficult for other alternative motions to pass, by raising the threshold that is required. This, coupled with the fact that owners are only able to vote for the actual motion plus one of the alternatives – or against the motion entirely – has meant that the existing arrangements do not always provide the fairest indication of group opinion.

The aim of the “group of same-issue motions” provisions in the new regulations is to facilitate – as far as practicably possible – the success of the most popular motion in the group and the strengthening of owners’ voting rights. Under the new provisions, owners will now be able to vote for or against any or all motions in the group, or abstain from voting on any or all of the motions. This is achieved by providing a two-step process for dealing with a group of same-issue motions.

Step 1: Identify the qualifying motions

Each of the motions in the group of same-issue motions will have a particular resolution type that must be satisfied for that motion to be passed. This means that there will be a mixture of different motions that may have different resolution types within the one group. While some of the motions may only require an ordinary resolution, others may require a special resolution, or a resolution without dissent.

A motion that receives the required number of votes to pass is a ‘qualifying motion’.

Step 2: Identify the successful qualifying motion

If there is only one qualifying motion out of the group, that motion will automatically be the successful motion.

If there are no qualifying motions in the group, there is no successful motion.

If there are multiple qualifying motions, the qualifying motion with the highest number of votes in its favour will be the successful motion and the body corporate’s decision.

So, how do you break a tie when multiple qualifying motions receive an equal highest number of votes in favour? Of these contenders, the one that received the least votes against it will be the successful motion.

The question then remains – what about the situation where there are multiple qualifying motions with equal votes in their favour and equal votes against? The new regulations provide that a tie of this kind will be resolved by chance. Whether this involves pulling the motions out of a hat or drawing straws is up to the owners at the general meeting to decide.

A group of same-issue motions in practice

Now, consider the scenario where a secretary receives motions from three lot owners proposing different ways to address the body corporate’s boundary fence, which is falling apart.

Broken Boundary Fence

ORIGINAL MOTION 1: To replace the boundary fence with a higher quality colorbond fence at a cost of X (special resolution).

ORIGINAL MOTION 2: To replace the wooden boundary fence with a similar wooden boundary fence at a cost of Y (ordinary resolution).

ORIGINAL MOTION 3: To repair the damage to the broken boundary fence at a cost of Z (ordinary resolution).

Original motion 1 receives 17 votes in its favour, 1 vote against and satisfies the requirements of a special resolution. Original motion 2 receives 17 votes in its favour, 5 votes against and satisfies the requirements of an ordinary resolution. Original motion 3 receives 4 votes in its favour, 10 votes against and does not meet the threshold for an ordinary resolution.

As original motion 3 did not satisfy the requirements of an ordinary resolution, it is out of the running. As both original motions 1 and 2 satisfy the requirements for their resolution type, they are both qualifying motions.

The next step is to work out which of the qualifying motions 1 and 2 has the most votes in its favour. As both qualifying motions received an equal highest number of votes, we must then look at the number of votes against. Original motion 1 is the successful motion, as it received the least number of votes against it.

Procedural requirements

It is worth noting that, as well as a having a group title, a group of same-issue motions should be listed on the voting papers in descending order, starting with the higher threshold resolutions. The order would therefore be as follows:

• Motions requiring resolution without dissent
• Motions requiring a special resolution
• Motions requiring a majority resolution
• Motions requiring an ordinary resolution

Where the voting paper includes a group of same-issue motions, an explanatory schedule must accompany the voting paper. Section 90 of the new Standard Module contains an explanatory schedule checklist that should be followed for a group of same-issue motions. Importantly, the checklist requires that the explanatory schedule should include an explanatory note that provides general direction on voting rights, counting of votes and qualifying motions. A thorough example of this kind of explanatory note has been provided in section 90 as a guide.

At first glance, the new provisions appear harder to grasp due to the number of factors involved. On unpacking the different elements, however, the concept is surprisingly simple. It is our hope that this article has provided some clarity on a topic that may otherwise seem daunting.

Michelle Scott
Information Service Freecall 1800 060 119
Commissioner for Body Corporate and Community Management

This post appears in Strata News #421.

Question: There are three decisions being made under one Motion. Is this an approved method of voting or should there be three Motions?

Question 1:

Our Community Titles Scheme consists of 75 Lots. The most recent Management and Letting Agreements lapsed due to the Manager failing to take up options on time.

Our Committee and the Manager have submitted motions, to be decided by secret ballot, at the upcoming AGM relating to the proposed new ‘Agreements’. The motion put forward, with two alternatives, lists both the proposed Caretaking Agreement and the Letting Agreement as well as listing a nominated person to be the ‘approved person’ under both Agreements.

My view is that there are three decisions being made under one Motion. Is this an approved method of voting or should there be three Motions?

Question 2:

Our Committee called an EGM to cover two Motions.

The first was straight forward but the second one covered two completely different matters yet we were expected to give a YES or NO answer to it. This was impossible as I (along with other owners) wanted to vote YES for the first matter but NO for the second. The first matter was to add a clause to the Caretaking Agreement, the second was to delete part of a clause in the Letting Agreement.

Also, they did not quote the clause that was to be deleted, just giving the number of the clause in the Agreement, they wanted to be deleted so unless you checked this Agreement you did not know what you were voting for/against.

A number of owners wrote to our Strata Managers voicing our concerns with this but we were fobbed off and the EGM went ahead without any owners being able to attend because of the COVID 19 situation. We believe it cannot be right to be forced to vote on two separate issues with only one voting choice. Are we Correct?

Answer: Both of these queries are essentially about motions with alternatives.

Both of these queries are essentially about motions with alternatives. Section 72 of the Standard Module (equivalent provisions of other Regulation Modules) provides for what a motion with alternatives is and how it should be treated. Of note is section 72(1) which states:

72 Motion with alternatives

1. This section applies if 2 or more motions (the “original motions” ) proposing alternative ways of dealing with the same issue are submitted, under section 69 , as motions for consideration at a general meeting of the body corporate.
   Example—
   The secretary of the body corporate receives motions from 3 owners of lots proposing the engagement of a person as a body corporate manager. Each motion proposes a different person.

The legislation doesn’t define what ‘the same issue’ is. Both of these queries are effectively disputing how ‘the same issue’ has been applied in each case and as such, this may require dispute resolution through the Commissioner’s Office if you can’t resolve the issues yourselves. Bear in mind you’ll need to provide grounds to back up your argument and all owners and the committee will be invited to ‘have their say’ as well. In other words, simply because you don’t agree with how these instances have been treated doesn’t necessarily mean they were wrong.

You may also need to seek legal advice.

Chris Irons
Hynes Legal
E: chris.irons@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #375.

UPDATE Please note: the new QLD strata legislation due out at the end of March 2021, refers to Motions with Alternatives as Same Issue Motions.

Question: Should a Chairperson forewarn the submitter that a motion is likely to be ruled out of order? This could save time and also allow the opportunity to amend the motion.

Body corporate legislation makes provision for motions to be ruled ‘Out of order’ if:

• the motion, if carried, would conflict with the legislation or the body corporate by-laws
• the motion, if carried, would conflict with another motion already voted on at the meeting
• the motion, if carried, would be unlawful or unenforceable for another reason
• the substance of the motion was not included on the agenda for the meeting.

Is there any provision, actual or implied, which imposes an obligation on the chairperson to forewarn the proposer of a motion that, in the form submitted, it is likely to be ruled out of order and afford the proposer an opportunity to amend the motion? To say nothing prior to the actual meeting seems likely to waste a lot of time an effort and consideration of a matter merely because of a mere technicality?

Answer: There’s no obligation per se. That said, what you are suggesting makes complete sense.

Chris Irons

There’s no obligation per se. That said, what you are suggesting makes complete sense. If a motion is received which is clearly going to be ruled out of order, there’s absolutely nothing stopping the chairperson or body corporate manager from calling the submitter and having an informal chat along the lines of ‘look, this one will not make the cut, for these reasons, so did you want to continue with it or did you want to withdraw it and have a think about either rewording or holding off?’.

This applies to any motion submitted which on the face of it looks a bit problematic. It can actually serve an educational purpose to do this and as you say, can save an awful lot of time, money, and heartache.

All that said, be prepared for the submitted to tell you in no uncertain terms they will not withdraw. It’s their motion, after all.

Frank Higginson

And if I was to put my ‘being a difficult lawyer’ hat on, I would say that if the committee was against the motion then it would be far from unheard of for the chairperson to simply ambush them on the day and rule it out of order without telling their proposer…..

Chris Irons
Hynes Legal
E: chris.irons@hyneslegal.com.au
P: 07 3193 0500

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #366.

Question: At a committee meeting, a motion was put forward by the chairperson and it proceeded to a vote. The vote was deadlocked 3 v 3 and the chairperson then had a casting vote. Is this right?

At a committee meeting, a motion was put forward by the chairperson and it proceeded to a vote even after discussion of the motion being out of order and duly noted by the strata manager. Is this motion effective?

The vote was deadlocked 3 v 3 and the chairperson then had a casting vote, which was essentially not to enforce a Referee’s order and not to enforce the bylaws.

Subsequently the committee was presented with a flying minute to vote on the same issue and the result was to overturn the previous motion 4 v 2.

At this stage we presume that the chairperson voted against the motion, along with the Committee person who has a conflict of interest and chose to vote despite advice from the strata manager.

Does the flying minute override the previous committee meeting vote?

Answer: There are no casting votes at committee level.

There are no casting votes at committee level.

3 all means the motion is not passed.

However, the committee can change their mind afterwards too. Just because a vote was defeated first time around doesn’t mean it cannot be reconsidered by the committee again and voted differently later.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #326.

Question: Who may move a motion to amend a motion? Can, for example, an owner present at the AGM, move a motion at the AGM to amend a motion put forward by the committee?

Answer: Section 94(2): ‘… an amendment can not be made that changes the subject matter of the motion’.

From a purely legislative point of view, section 94 of the Standard Module (and equivalent sections of the other Modules) provides for the amendment of a motion at a general meeting (GM). There are some details about how that is done, although the most important part is section 94(2), which provides that ‘… an amendment can not be made that changes the subject matter of the motion’.

The legislation doesn’t define ‘subject matter’. That said, I think you can quite clearly see the section is not intending that a motion gets amended at a GM to the extent that it changes what the motion is seeking to achieve. Looked at another way, the section is providing the body corporate the ability to make an amendment that is procedural or minor in nature.

And really, that’s how it should be and what this section (and the question) does is highlight just why the legislation puts so may prescriptive timeframes and processes about GMs and motions.

All members of the body corporate need an equal opportunity to receive the agenda, in advance and to have time to absorb it and consider their options. A lot owner may, for example, on receipt of an agenda with motions want to take the time to research the motion or indeed, seek legal advice about it.

It’s particularly necessary to allow time in advance for people voting by ballot paper (or electronically, if and when that happens). I know it is commonplace for owners and committees to ask about whether motions can be tabled from the floor at a GM and they are sometimes miffed when told they can’t. Hopefully, this section and question emphasises why that is the case.

You cannot simply throw up new things or significant changes at a meeting and expect everyone to be comfortable voting on it there and then. That’s not how body corporate decision making happens.

Chris Irons
Hynes Legal
E: chris.irons@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #320.

Question: A resident in our scheme would like to have General Business included as an item on our AGM Agenda. Is that permissible, or can only the motions included in the circulated Agenda be dealt with at an AGM?

A resident in our scheme would like to have General Business included as an item on our AGM Agenda. Is that permissible, or can only the motions included in the circulated Agenda be dealt with at an AGM?

Are there any circumstances where an item raised at an AGM that is not on the circulated Agenda may be voted on other than, for example, a procedural motion?

Personally I don’t have any objection to this idea as a means of giving owners a chance to be heard, but I would be glad to receive advice on both its legality and how it would work in practice if it is allowed.

Answer: There is no such thing as general business at an AGM. If the motion is not on the agenda, it cannot be voted on.

There is no such thing as general business at an AGM. If the motion is not on the agenda, it cannot be voted on. This is because the legislation allows people to cast votes beforehand to exercise their rights which then removes the need for them to come to the meeting. Therefore, if motions could come from the floor on the ay those owners would be disenfranchised by not being able to have their say.

There is no reason people cannot have a natter after the meeting, but from my end, that is best done when the meeting has officially closed, the new committee is in place, and then general items can be canvassed. Nothing discussed there will be binding though like a vote at the meeting itself.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #319.

Question: If a Motion is ‘passed’ at an AGM by Ordinary Resolution, is there any obligation by the Strata Committee or Body Corporate Manager to put it into action?

If a Motion is ‘passed’ at an AGM by Ordinary Resolution, is there any obligation by the Strata Committee or Body Corporate Manager to put it into action? E.g. The Body Corporate authorise the Body Corporate Manager to arrange a gutter clean and roof inspection from a suitably qualified contractor – Motion Passed by Ordinary Resolution.

Answer: They should do what the motion directed. It is as simple as that.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #295.

Question: Should strata AGM motions be ruled as Out of Order if they are based on and contain incorrect and misleading information?

Should a motion proposed for an upcoming AGM be ruled as Out of Order if it is based on and contains incorrect and misleading information?

As most of our unitholders live out of state, strata AGM motions are voted by mail ahead of the actual meeting so there is little opportunity for open discussion.

Answer: Generally it would be considered fair and reasonable for owners to be given the opportunity to comment on strata AGM motions prior to voting.

The Module says

48 Power of person chairing meeting to rule motion out of order [SM, s 81]

1. The person chairing a general meeting of the body corporate must rule a motion out of order if—
   1. the motion, if carried, would—
      
      1. conflict with the Act, this regulation or the by-laws, or a motion already voted on at the meeting; or
      2. be unlawful or unenforceable for another reason; or
   2. except for a procedural motion for the conduct of the meeting, or a motion to correct minutes—the substance of the motion was not included in the agenda for the meeting.

2. The person chairing the meeting must, when ruling a motion out of order—
   
   1. give reasons for the ruling; and
   2. for a ruling given under subsection (1) (a) —state how the ruling may be reversed by the persons present and entitled to vote on the issue.

3. The persons present and entitled to vote may reverse a ruling given under subsection (1) (a) by passing an ordinary resolution disagreeing with the ruling.
4. The reasons given by the person chairing the meeting for ruling a motion out of order must be recorded in the minutes of the meeting.

That sets out a step by step process, but the key is what we have highlighted in bold above. What is incorrect or misleading are matters of opinion and there may, or maybe not, be reasons to rule a motion out of order if that is the case – but only by reference back to one of the reasons we have bolded above.

These ones really do hinge on the actual working of the motion.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #217

Question: We have been advised that voting at body corporate AGM will not involve any debate. If a process removes speaking for or against a strata AGM motion, I am of the opinion this would be non-compliant with legislation.

Our AGM is to be held in late January 2018. Minutes from the last (Budget) meeting has included a note that:

“The Committee wish to advise that unlike previous years, there will not be a debate process at the Annual General Meeting.

Further to the above, the Committee request for you to complete your voting paper and return to “the Strata Manager” prior to the date of the meeting …….”

As such a process removes speaking for or against a strata AGM motion, I am of the opinion this would be non-compliant with legislation. I cannot see the purpose of attending a meeting where the voting would be counted prior to the meeting by the Strata Manager and those attending simply told the results.

Answer: “the general principles of meeting procedure establish that debate must be allowed prior to voting.”

Adjudicator Rosemann made these comments in Pacific Mansions [2012] QBCCMCmr 167 (original footnotes removed):

[44] The body corporate legislation does not specifically refer to the conduct of debate on motions at a meeting. It simply specifies how voting will be conducted. However, in my view, the general principles of meeting procedure establish that debate must be allowed prior to voting. A widely recognised authority on Australian meeting procedures says:

“The purpose of debate is to allow members to state relevant facts and express their views on the business before the meeting. This is an essential part of the democratic process by which organisations reach decisions. Members should be allowed to share their information and to attempt to persuade their fellows of the rightness of their views.”

[45] The fact that some voters are not present to participate in debate is immaterial. The persons who are present at the meeting are entitled to withdraw their written vote, and substitute an alternative personal vote, at any time before the result of the motion is declared. The fact that a chair believed no owner present would change their vote is no basis to prevent debate.

[46] The need to allow debate does not mean a chair cannot control the conduct of debate, and indeed they should. A chair should give each voter present an opportunity to speak, ensure others do not interrupt, require speakers to keep to the point, and so on. Debate could be limited by restricting the time allotted to each speaker. However, I consider this would require the agreement of the meeting, through a procedural motion that was proposed, voted on, passed and minuted. The chair or committee could not unilaterally impose such a restriction.

I would add to Ms Rosemann’s helpful explanation that the content of the debate does not have to be included in the minutes of the general meeting, even though the participants may feel strongly about their comments being “put on the record”. Recording what is said in such debates is not required by the legislation, and may turn minutes into a small novel.

Jason Carlson
Grace Lawyers
E: jason.carlson@gracelawyers.com.au

This post appears in Strata News #175.

Question: Is it OK for a Committee to recommend a preferred contractor in a Motion With Alternatives?

Is it normally alright for a Committee to recommend a preferred contractor in a Motion With Alternatives eg about painting our complex?

Our Committee is submitting a Committee Motion to our AGM about the painting of our complex. This will involve a motion with alternatives. Can our Committee include, either in the Motion or the Explanatory Schedule, our recommendation as to which of the 3 painters we prefer, especially if the preferred contractor is not the cheapest?

Answer: The committee has an absolute right to make a recommendation

The committee has an absolute right to make a recommendation. As has been held in the District Court:-

Obviously, any note put forward by the submitter of the motion is going to present an argument in favour of the motion. I cannot see anything in the regulation which requires the submitter of the motion to include in the explanatory note arguments against the motion as well as arguments in favour of it, so as to be balanced, and such a proposition strikes me as not supported by anything in the legislation or the general law.

Frank Higginson
Hynes Legal
E: frank.higginson@hyneslegal.com.au
P: 07 3193 0500

This post appears in Strata News #118.

Question: Is it possible to speak in relation to a strata AGM motion if you are not a committee member?

Is it possible to speak in relation to a motion being put to the AGM if you are not a committee member?

In that, most owners don’t attend the AGM and have the opportunity to vote electronically or by post, it would be necessary for my remarks to be distributed to all owners prior to their voting if I am endeavouring to put new material before them with the intent of persuading them to vote in a certain fashion.

Answer: Generally it would be considered fair and reasonable for owners to be given the opportunity to comment on strata AGM motions prior to voting.

Generally, it would be considered fair and reasonable for owners to be given the opportunity to comment on a motion at an AGM prior to voting. However, your question relating to circulating information prior to the AGM, so that owner voting electronically or by voting paper still receive the information, depends on the circumstances.

There are two scenarios where an owner may want to provide other owners with additional information in relation to a motion:

1. If the owner has submitted the motion themselves
   
   If an owner has submitted a motion for inclusion on an AGM agenda, they may submit an explanatory note, up to 300 words. This explanatory note must be sent to owners with the voting paper for a general meeting. (See Section 73 of the Body Corporate and Community Management (Standard Module)). Your Strata Manager or an independent consultant will be able to help you with wording an explanatory note.
2. If the owner wishes to provide additional information on a motion submitted by someone else
   
   If an agenda has already been distributed or the motion has been submitted by someone else then you will not be able to provide an explanatory note for the motion. If you have a good relationship with the party submitting the motion, you may be able to work with them and have them submit the explanatory note to the motion.
   
   There is nothing in the legislation prohibiting an owner from independently sending correspondence direct to each owner, separate to the AGM Agenda. This may be an option for you if you are not able to get an explanatory note on the Agenda. You should ensure that your correspondence does not contain any defamatory material and you may put your contact details on the correspondence so that owners who wish to seek further clarification can contact you directly.

This post appears in Strata News #111.

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