validity of voting papers

31 Jul Validity of Voting Papers

Validity of Voting Papers – How to ensure that your Voting Paper is accepted if you are unable to attend the meeting

As an owner unable to attend the General Meeting for your scheme, you want to be confident that when you are submitting your voting papers these will be accepted and your votes included for each of the motions.

This month’s adjudicators order focusses on a dispute raised after a voting paper that was emailed to the Body Corporate Manager by a third party (not the Owner or a representative) was treated as invalid and was not counted towards the voting for each of the motions. As such, the applicant sought an order that the voting papers for the Owner were validly submitted and that a recount of the votes be done.

A number of aspects were reviewed by the adjudicator in respect of this application including whether the voting paper delivered by email was considered a “written vote or electronic vote”. The adjudicator reviewed legislation, particularly Section 86 (1) of the Standard Module and ruled that a scanned voting paper was a “written vote” and as such, this was a non-issue.

However, the next point raised by the adjudicator was the validity of voting papers delivered by a third party.

Section 86(2) of the Body Corporate and Community Management (Standard Module) Regulation 2008 states:

A voter casts a written vote by –

  • Completing the voting paper as required by the accompanying instructions; and
  • Giving the voting paper to the secretary (by hand, by post or by facsimile) before the start of the meeting

For clarification, under the Body Corporate and Community Management (Standard Module) Regulation 2008, the term “Voter” is defined as;

  • an individual whose name is entered on the body corporates roll as the owner of a lot; or
  • the representative of the owner of a lot (including persons acting under power of attorney, guardian, trustee, receiver or other representatives of the owner and is authorised to act on the owner’s behalf – provided that evidence of this has been provided to the Secretary); or
  • an individual who is the nominee of a corporation whose name is entered on the body corporate’s roll as the representative of the owner of a lot; or
  • an individual who is a corporate owner nominee; or
  • an individual who is a subsidiary scheme representative.

Under Section 86(2), noted above, it states that the voting paper should be given to the secretary before the meeting, however in most cases, the voting paper is mailed, or emailed to the Body Corporate Manager. The adjudicator references this in the order also, noting that Section 119 of the Body Corporate and Community Management Act 1997 allows the Body Corporate to authorise the BCM to exercise the power of the secretary in regards to receiving voting papers.

The request of the applicant that the voting paper from lot 4 be considered as validly submitted and a recount of the votes was dismissed by the adjudicator on the grounds that the voting papers were submitted on behalf of the lot owner by a third party (not considered a “voter” under the definition above)

More detail on the adjudicator’s order can be read here:

http://www6.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2018/275.html

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