MUDDIED WATERS

The recent adjudication decision of Whitsunday Waters Resort [2020] QBCCMCmr 84 (“Whitsunday Waters”) has caused consternation in BoCo land.

The decision has body corporate manager’s questioning the long-standing practice of a BCM accepting voting papers, essentially on behalf of the secretary.

In short, Whitsunday Waters is a decision about whether a motion to grant a lease over an area of common property achieved a special resolution, and whether votes received for the motion were validly submitted.

The way votes must be exercised at a general meeting for schemes governed by the Body Corporate and Community Management (Accommodation Module) Regulations 2008 (Qld) (the “Accommodation Module”) is set out in section 84 of the Accommodation Module.

Relevantly, section 84(2) of the Accommodation Module states:

(2) 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 facsimile) before the start of the meeting”

The requirements under the Standard Module are the same.

In Whitsunday Waters, the Adjudicator interpreted the decision of Van Deurse & Anor v Q1 Management Pty Ltd & Anor[1], in conjunction with the Body Corporate and Community Management Legislation Amendment Regulation (No.1) 2003 SL No. 263, to mean section 84(2)(b) of the Accommodation Module “prohibits a voting paper from being returned to a body corporate manager.

Two votes were invalidated because they were sent by the owner via the body corporate manager, rather than directly to the elected Secretary of the body corporate.

What is curious about the decision is that it focusses on the two votes cast by email and by fax. The decision does not make any comment about any votes posted to the Secretary, care of the BCM.

It may be the Adjudicator simply had no cause to turn their mind to the issue.

It may be the return address for the voting papers was “PO Box 1234”, meaning the Adjudicator simply was not put on enquiry as to who owned the PO Box. Was it the PO Box of the BCM?

If the return address was care of  “Super Strata Managers,  PO Box 1234”, would the Adjudicator have investigated the validity of the postal votes?

The decision is, with respect to the Adjudicator, rather unhelpful as it has muddied the waters, instead of providing much needed clarification.

As a result of the decision there are now many BCM’s questioning whether they can continue the usual practice of acting as the post box for the secretary.

Regrettably, there is no clear answer to the question.

One view is that a BCM who is the “care of” address of the Secretary on the meeting notice is not an intermediary and that as such it is in order for votes to be sent to the BCM as the nominated return address  for the secretary.

However, until this view is clearly accepted by an adjudicator or a member or members of a Court or Tribunal of competent jurisdiction, there is always a chance a voting paper sent to the Secretary care of the BCM’s address is open to challenge and may be ruled invalid.

Another view is that a voting paper must be sent to the Secretary, without the possibility of any interference by an intermediary, that is, sent to an address, for example, a PO Box, under the control of the Secretary.

Because of the Whitsunday Waters decision, this appears the prevailing view. Regrettably, if that is the case, the view completely overlooks the practical ramifications of voting papers not being able to be sent care of the BCM.

Adjudicators are interpreting the legislation not from the perspective of what is workable for the body corporate, but from the perspective of what is intended by the specific wording of the legislation, having regard to:

  1. The explanatory notes of the amendment to this section when the word “by hand” replaced the word “personally” – which in effect say:

The explanatory notes to the amending regulation — the Body Corporate and Community Management Legislation Amendment Regulation (No.1) 2003 SL No. 263 — state at page 48 that the word “personally” has caused confusion as to whether it should be strictly construed as being given to the secretary by the voter. The amendment reflects this approach by providing that if a voter completes a voting paper, that voter has the choice of giving the completed voting paper to the secretary himself or herself by hand, or by post, by facsimile or electronically. The voter cannot give the completed voting paper to another person to hand to the secretary; and

  1. Peter Beattie’s speech in Parliament when he introduced the amending legislation referred to above, which was recognised in the QCATA Q1 Management decision referred to above as follows:

“having regard to the contents of Mr Beattie’s speech, among other things, that this is a “consumer protection” provision which is designed to protect all lot owners by creating an assurance that every written vote cast is a sincere and honest expression of the voter’s views, as authenticated by the voter’s taking the trouble personally to give the voting paper to the secretary if the alternative modes of transmission are not resorted to. That state of assurance, the argument runs, cannot be reached where some intermediary is interposed, who is the one who in the event gives a voting paper to the secretary.”

“Isn’t the post man an intermediary” I hear you say. Not for the purposes of interpreting the relevant section of the Module. Essentially the post man is recognised as an authorised intermediary.

“What if the someone other than the Secretary collects the voting papers for the mail” I hear you say.  An excellent question, to which there is no clear answer. I expect that will simply be a matter of fact in the event of an application by an owner alleging voting papers were handled by an intermediary.

The ramifications of Whitsunday Waters being adopted as authority for the proposition that voting papers cannot be sent to the Secretary, care of the BCM, is that a secretary, who we know by and large will be unpaid, will be responsible for receiving all votes personally.

The issue is crying out for clarity. In the absence of the Whitsunday Waters decision being appealed, there will be no clarity, at least at a judicial level.

In our view the issue is serious enough to warrant urgent legislative intervention such that the Modules are amended to make it crystal clear that voting papers may be returned to the secretary care of the BCM.

So…. what now?

Given the uncertainty created by the Whitsunday Waters decision, we believe that any voter who wishes to have their vote on an open motion not open to challenge should give the voting paper directly to the Secretary either:

  • by hand; or
  • by post to the Secretary’s postal address (it may be wise for a PO Box to be established for the scheme only accessible by the secretary, and any open voting papers that are to be posted, are posted to that PO Box);
  • by facsimile to a fax machine under the sole control of the Secretary; or
  • by e-mail to the Secretary’s to an e-mail address under the sole control of the Secretary.

Unfortunately, it is sometimes the case that prudence and practicality are mutually exclusive.

Fair to say Whitsunday Waters has muddied the waters!!

As always, the Active team is here to assist with any body corporate legal issues you may have.


[1] [2017] QCATA 113 (23 October 2017).


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