Aspen [2025] QBCCMCmr 280 (15 August 2025)

Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module)

GENERAL MEETING PROCEDURES - where some voting papers sent by post were not counted and it is unclear what became of them; where affected voters might have voted in person at the AGM if made aware their postal votes had not arrived; whether a resolution passed without those votes ought to be overturned.

Act, s 276(1); Standard Module, ss 109(2),112(3), 114(4)(a)(iii) & (b).

• [1] Mr Field says his vote and the votes of three other owners were not counted toward motion 13 of an annual general meeting held on 18 December 2024. Motion 13 proposed extending the engagement of the caretaking service contractor and was decided by secret ballot, passing with 25 votes in favour and 21 against. It has since been executed by the body corporate committee.
• [2] The voting papers were required to be given or forwarded to the returning officer "so that the returning officer receives it before the votes are counted at the general meeting".[1] Mr Field and the other three voters sent them via Australia Post in what they thought was ample time. They were not aware their votes had not been received at the AGM because Mr Field says the returning officer did not announce which lots had voted. They only realised their votes were not included when the minutes were distributed on 18 January 2025. Had they been made aware at the AGM, Mr Field says three of them who attended the meeting could have voted as permitted by section 109(2) of the Standard Module.
• [3] Mr Field seeks orders in the following terms:

Acknowledgement that irregularities occurred in the conduct of the secret ballot on motion 13 at the AGM held on 18 December 2024 and that lot owners were not given the opportunity to lodge their vote at the AGM in accordance with relevant BCCM regulations particularly Section 109 (2).

A declaration that motion 13 at the AGM on 18 December 2024 passed by secret ballot be declared void and of no effect due to procedural errors.

• [4] However, no irregularities are evident. There is no statutory requirement for the returning officer to announce which lots voted on a motion to be decided by secret ballot.[2] Unlike open motions, there is not even a requirement to record those details in the voting tally sheet available for inspection at the meeting.[3] Even if there was such a requirement, and assuming that all four voters opposed motion 13, the three voters present at the meeting would have been insufficient to change the result.
• [5] There is no hint that anything untoward happened to the four voting papers. There is no suggestion that they arrived but were disregarded to ensure motion 13 passed, for instance. Their whereabouts are simply unknown. Mr Field notes that the AGM was held a week before Christmas at "the worst time of the year to rely on mail being delivered in a timely way".
• [6] Mr Field acknowledges that the correct procedures may have been followed, but he questions "whether they are rigorous enough to ensure that a fair and legitimate ballot occurs". That is a question best put to Mr Field's parliamentarians.
• [7] With no evidence of procedural irregularities, I cannot make the orders Mr Field seeks, notwithstanding that four owners did not have their votes counted and motion 13 might have been decided differently as a result. My power to make an order that is just and equitable:

...does not ... give the adjudicator a discretion to set aside a decision which was taken in accordance with the mechanism established under the Act simply on the basis that he disagrees with it.

...it is not simply a question of whether the adjudicator thinks that, if a particular order were made, the result would be just and equitable in accordance with the subjective view of the adjudicator.

It is in my opinion necessary to show some proper basis in law or equity for the grant of relief under s 276(1)...[4]

[1] Standard Module, s 110(e).

[2] Standard Module, ss 109(5)-(7) & 112(3).

[3] Standard Module, s 114(4)(a)(iii) & (b).

[4] McGill DCJ, Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300 at [97], [98], [100].