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

GENERAL MEETING PROCEDURE - where results of voting on motion to appoint body corporate manager were disputed

• - where the vote from a lot owner excluded at the AGM as allegedly "unfinancial", but owner provided evidence of payment to body corporate bank account
• - requirements for casting a valid vote whether another vote should be excluded for non-compliance section 95 of the Accommodation Module

Act, ss 118, 119, 276, 310

Accommodation Module, ss 11, 92, 94, 95, 96, 97

1. I declare that the owners of Lot 98 did not owe a body corporate debt at the date of the adjourned annual general meeting on 2 April 2025, and their vote was improperly rejected.
2. I further declare that the claimed vote by the owner of lot 48 was invalid and improperly accepted as a valid vote at the adjourned annual general meeting on 2 April 2025.
3. I declare that therefore, the correct result of voting on the Group of Same Issues Motions 7, "Appointment of Body Corporate Manager" was as follows:

(i) Motion 7.b. was the qualifying motion with the highest number of votes in favour, and

(ii) The body corporate resolved to engage ZACK's Strata as Body Corporate Manager for a term of 12 months

1. I order that the body corporate must amend its records and the results of voting on motions considered at the adjourned annual general meeting on 2 April 2025, by including votes cast by lot 98 and excluding votes cast by Lot 48.

• [1] This is an application by Mr Leonard Chambers, the owner of Lot 117 and Secretary of the Body Corporate Committee. The Respondent is the Body Corporate for Cairns Pavilions.
• [2] The applicant is challenging the outcome of motions at the Annual General Meeting (AGM) on March 26, 2025 which was reconvened on April 2, 2025. Most votes were cast by voting paper.
• [3] The applicant says the resolutions on motions 1-6 and 8-13 were unchanged at the adjourned AGM on 02 April 2025. However the outcome of voting on motions 7a and 7b had changed at the adjourned meeting.[1]
• [4] The applicant therefore requests that the result of the Group of Same Issue Motion 7 be amended and that as a result:

(i) Motion 7b is ruled as the qualifying motion with the highest number of votes in favour and

(ii) The body corporate resolve to act in accordance with motion 7b

• [5] Cairns Pavilions consists of 120 lots and common property. It is regulated by the Accommodation Module.
• [6] This application concerns a dispute within the Cairns Pavilions body corporate regarding the appointment of a new body corporate manager and alleged irregularities in voting procedures. Leonard Chambers, the applicant and current secretary, is challenging the outcome of motions at the Annual General Meeting (AGM) on March 26, 2025, which was reconvened on April 2, 2025.
• [7] The core of the dispute revolves around the reappointment of Ace Body Corporate Management (Ace BCM) over a competing proposal from Zack's Strata**,** and the eligibility of certain votes due to financial status. The applicant also raises concerns about access to voting records and a perceived conflict of interest in Ace BCM's management of the AGM process.
• [8] The Annual General Meeting (AGM) initially held on 26 March 2025, and adjourned to 2 April, 2025, considered the "Group of Same Issue Motion 7: Appointment of Body Corporate Manager". The applicant requests that the result of the Group of Same Issue Motion 7 be amended. He seeks for Motion 7b (to appoint Zack's Strata) to be ruled as the qualifying motion with the highest number of votes in favour, and for the body corporate to resolve to act in accordance with motion 7b.
• [9] In the grounds for the Adjudication Application**,** the applicant lists several issues regarding the management and voting process of the AGM.

• [10] The applicant believes that a quorum might have been present at the initial AGM, making the adjournment unnecessary. If a quorum had been declared, Motion 7b (Zack's Strata) would have been the successful applicant.
• [11] On March 26, 2025, the BCM stated there was no quorum, reporting 29 available voters when 30 were needed. Relying on the count provided by ACE, the Chairman confirmed to owners that a quorum had not been achieved.
• [12] However, the applicant's review of attendance and tally sheets suggests a quorum of 30 or 31 was possible. He believes the Chairperson should have had the opportunity to view the voting papers and associated documents in order to decide whether a quorum was present and whether an adjournment was required.

Vote Handling by BCM - BCM selective as to which lots were financial or unfinancial:

• [13] The applicant believes that the body corporate manager accepted voting papers from owners recorded as being "Unfinancial" in the Aged Balance List (02/04/25). He alleges that the BCM accepted votes from Lots 30, 50, and 100 (which favoured Motion 7a) despite them being unfinancial according to the Aged Balance List of April 2, 2025. Conversely, a vote from Lot 98 (favouring Motion 7b) was excluded due to unfinancial status, even though a payment receipt from April 1, 2025, was later obtained by the Secretary.
• [14] The quarterly payment period for body corporate fees ended on 31/03/25 and according to the Aged Balance List (02/04/25), Lots 30, 50, 98 and 100 had become unfinancial. However the aged balance list had not been updated and the BCM accepted a receipt from lot 50 describing payment made on 01/04/25 as well as receipts from lots 30 and 100 describing payments made on 02/04/25, as evidence that lots 30, 50 and 100 were "financial".
• [15] The Secretary was also provided with a bank issued receipt by lot 98, confirming that they made payment of their levies into the account of the body corporate on 01/04/25 but this vote was not accepted and not included in the count. The accepted votes from Lots 30, 50, and 100 all voted yes to motion 7a. The yes vote from Lot 98 for motion 7b was declared "unfinancial" and excluded from the count.
• [16] The applicant says this decision is questionable and warrants an explanation as to why some of these votes were accepted when described as unfinancial in the Aged Balance List.

• [17] The applicant alleges that the body corporate manager altered the vote for Motion 7 from Lot 72 during a phone call with the owner, to favour Motion 7a, which the applicant believes conflicts with legislation and the BCM Code of Conduct.

• [18] The applicant alleges that the BCM accepted a brief email from Lot 48 as a voting paper which favoured Motion 7a, without consulting the committee.

Exclusion of Committee Members from Vote Counting:

• [19] The applicant also alleges that on 26 March 2025, the BCM arrived an hour early, demanded privacy, and did not invite the Chairperson or Secretary to participate in vote counting. The applicant suspects votes were pre-counted and tallied before the meeting.
• [20] It is alleged that the BCM refused the applicant's request as Secretary to view votes and tally sheets, which is asserted to be in conflict with Sections 103 & 104 of the Accommodation Module.
• [21] The applicant says that neither the Secretary nor the Chairperson was involved in vote counting throughout the AGM process and that the BCM maintained complete control over all vote documents.

• [22] The applicant says the BCM declared the voting results of the adjourned AGM on 2 April 2025, instead of the Chairperson, which he says involved a contravention of Section 104 (1) & (2) (a), (b) & (c) of the Accommodation Module.

• [23] Between the initial meeting on 26 March 2025 and the adjourned AGM on 2 April 2025, the total number of votes increased from 29 to 34. The applicant claims Ace Body Corporate Management gained 8 "Yes" votes within this period, leading to a majority vote on Motion 7a and Ace being re-appointed as body corporate manager.
• [24] Upon raising his concerns, the Chairperson advised the applicant that that neither he nor the Committee has the authority to overturn a resolution validly passed at a general meeting, suggesting formal dispute resolution.
• [25] The applicant requests to be excused from conciliation because the issues relate to General Meeting Resolutions and aspects of an Annual General Meeting that the Committee would not have the power or ability to conciliate.

• [26] The applicant says the Initial Result of the AGM on 26 March 2025 was as follows:

◦ Motion 7a (Ace): Yes 9, No 14, Abstain 1 (Does not qualify).

◦ Motion 7b (Zack's): Yes 16, No 9, Abstain 0 (Qualifies).

• [27] The applicant also says the Declared Result of the Adjourned AGM on 2 April 2025 (the Final Declared Result) was:

◦ Motion 7a (Ace): Yes 17, No 15, Abstain 1 (Qualifies).

◦ Motion 7b (Zack's): Yes 16, No 17, Abstain 0 (Does not qualify).

• [28] Ace Body Corporate Management (Motion 7a): Proposed a three-year engagement from April 29, 2025 to April 29 2028, at $240.00 per lot per annum, noting no insurance commission would be received. This fee is presented as $120.00 usual management fee + $120.00 usual insurance commission.
• [29] Their existing contract was for 2 years, ending April 29, 2025 with a fee of $115.00 per lot per annum for Agreed Services and $85.00 per lot for Disbursements, plus potential commissions.
• [30] Zack's Strata (Motion 7b): Proposed a 12-month appointment at $200.00 per lot per annum (all-inclusive), stating they do not accept Strata Insurance commissions.
• [31] The applicant says he is facing challenges in obtaining documents. As Secretary he made multiple requests to the BCM for copies of all individual votes submitted, including Stratamax records, and associated AGM documents. The BCM initially provided a vote tally but was reluctant to provide individual vote papers or the detailed Stratamax records, stating that for online votes, the register is the only document.
• [32] A committee motion on April 17, 2025, formally requested these documents, which the BCM later refuted as having already been provided, and challenged the accuracy of the committee minutes.

The commissioner invited the committee and the other lot owners to make submissions about the matters raised by the applicant (s 243, Act). Eight submissions were received, four of which supported the application, and four of which opposed the application.

• [33] A submission was received from Mr Will Attwood**,** the Chairperson of the Body Corporate Committee, who supports the application. He has numerous concerns regarding the conduct of the 2025 Annual General Meeting (AGM). He details various perceived procedural irregularities and a lack of transparency that he observed during both the initial and reconvened AGM, particularly concerning vote counting, quorum determination, and the declaration of results**.**
• [34] Mr Attwood also believes there was a significant conflict of interest in the Body Corporate Manager's handling of the vote for their own reappointment and supports a review to ensure the true will of the owners is reflected.
• [35] During the Annual General Meeting (AGM) on March 26 2025, and the reconvened AGM on April 2, 2025, several procedural irregularities were observed, primarily concerning vote management, quorum determination, and transparency.
• [36] Mr Attwood says that at the AGM on 26 March 2025, he was excluded from vote counting. He says the Body Corporate Manager (BCM) and an assistant insisted on complete privacy to handle voting papers, without any committee oversight. The Chairperson and Secretary were not permitted to participate in, or witness the vote counting, meaning all pre-submitted votes were handled exclusively by the BCM's team. There was no transparent process to verify how postal votes were opened and tallied, with some postal votes dated as received the day before the AGM, suggesting they were opened and counted in advance. He says that these actions conflicted with expected impartial conduct and BCCM legislative requirements.
• [37] He also believes that the quorum determination was questionable. The BCM initially stated that no quorum was present (it was claimed that 29 voters were represented against a requirement of 30) and the meeting was delayed for 25 minutes. However, based on the attendance sheet provided the next day, it is likely the quorum had been met, as additional owners were physically present who had not pre-voted. If a quorum was present, the meeting should not have been adjourned.
• [38] He also says that there was a lack of transparency in the voting process. Despite the close quorum count, the BCM requested the Chairperson to declare the meeting adjourned. The Secretary's request to inspect the voting papers and preliminary tally sheet to verify the count and ensure transparency, was refused by the BCM. This refusal prevented the committee from double-checking the quorum count and vote tally on the spot, and appeared to conflict with sections 103 and 104 of the Accommodation Module, which require meeting voting records to be available for inspection and proper procedures for counting and declaring votes.
• [39] The Chairperson also raises the following concerns about the conduct of the Reconvened AGM on 2 April 2025.
• [40] Lack of Committee Oversight in Vote Handling: The Chairperson was again ordered to leave the room where the BCM was handling proceedings prior to the meeting. Neither the Secretary nor the Chairperson was permitted to be involved in handling or counting additional votes received before the 2 April meeting, nor were they invited to verify any figures. He says the BCM maintained complete control over all voting documents and the tallying process, requiring the committee to rely entirely on the manager's representations of the final counts.
• [41] Introduction of New and Changed Votes: The number of votes increased from 29 to 34 between the original and reconvened meetings. Owners who had not voted by March 26 had taken the extra week to submit votes, and some even changed their votes during that period. He considers this situation to be highly unusual and says it created an opportunity for lobbying or reconsideration on contentious motions.
• [42] Reversal of Motion 7 Outcome: The voting outcome for Motion 7 (appointment of Body Corporate Manager) changed significantly compared to the initial March 26 tallies. Additional "Yes" votes for Motion 7a (Ace's reappointment) and/or changes to previously submitted votes resulted in Motion 7a being declared successful, displacing Motion 7b (Zack's Strata Management), which had initially been favoured by voters. This "stark turnabout" was a major concern.
• [43] Improper Declaration of Results by BCM: The Body Corporate Manager herself announced the voting results to those present, instead of allowing the Chairperson to declare the outcome of each motion. He says this was a breach of standard meeting protocol and the Accommodation Module, which mandate the Chairperson to declare the result of voting on motions and provide details if requested. This action was considered improper, in contravention of section 104(1) & (2) of the Accommodation Module, and highlighted a conflict of interest, as she was announcing the success of her own company's reappointment.
• [44] On March 5, 2025, the Committee Secretary, with the Chairperson's support, requested transparent handling of votes, specifically asking that email/electronic votes be forwarded to the Secretary and postal votes remain unopened until the Chair could count them during the meeting. This request, made due to the potential conflict of interest regarding the manager's contract renewal, was effectively ignored.
• [45] On April 17, 2025, the Committee passed a resolution directing the BCM to provide all voting papers and associated documents from the AGM for independent review. This was to verify vote counts, financial status of voters, and any irregularities. However, the BCM failed to comply with this official resolution, impeding the committee's ability to address concerns internally.
• [46] The Chairperson says he explicitly raised concerns about a conflict of interest in correspondence on April 7, 2025, stating that the BCM's complete control over the voting process for Motion 7 was inappropriate given her direct financial interest in the outcome. He emphasized that no manager should unilaterally preside over the tabulation of votes for their own re-appointment.
• [47] Other submissions raised concerns about the integrity and transparency of the AGM procedures**,** specifically questioning the validity of the quorum count, the abrupt adjournment of the meeting, and the subsequent impact on voting outcomes. A central point of contention is the conduct of the Body Corporate Manager, who some say exerted undue control over the voting process, exhibited a conflict of interest in managing the vote for her own reappointment, and refused to provide voting documents for committee review**.**
• [48] The owner of lot 112 also made submissions. They support the application and say they believe the applicant to be an honest and upstanding type of person who would not put forward these allegations unless he thought it was absolutely necessary.
• [49] They are also concerned the outcome of voting on Group of Same Issue Motions 7. They have concerns regarding the management of the voting process at the AGM originally scheduled for 26 March 2025 and the adjourned to 2 April 2025. In particular they refer to the absence of the executive committee involvement in the voting process, decision making in the vote approvals and "suspicious vote alterations".
• [50] Further, they are concerned about a procedural irregularity in adjourning the meeting, noting that the BCM allegedly refused to allow the Chairperson and Secretary to verify the count of voters, casting doubt on the legitimacy of the adjournment. The impact of the adjournment was significant, as it extended voting for a week, potentially allowing lobbying and influencing of owners, leading to an increase in votes and even changes in votes.
• [51] Submissions were received from Ace Body Corporate Management - Cairns Northern Beaches. They say the outcome sought by the applicant is unfounded The BCM denies that they unfairly influenced the outcome of motion 7. The results of the motion were taken as per the votes received from lot owners prior to and at the adjourned Annual General Meeting. The votes were received by vote paper, email, post, electronically, from the owner in person at the meetings, and from lot 117, Mr. Chambers.
  • [52] They say there was no quorum at that meeting. Attached were documents which they say show a quorum was 29 where 30 were required and therefore the meeting was adjourned.
• [53] The applicant claims that the "resolution" for motions 1-6 and 8-13 were unchanged from the meeting on 26-03-2025 to 02-04-2025. They say that the applicant is referring to votes initially cast but further votes were received and the voting outcome changed for certain motions. They say the 2 April 2025 AGM Minutes record all results as per the meeting and the votes received.
  • [54] As per the votes received for the meeting held on 02-04-2025, the motion 7a was carried and 7b did not qualify.
• [55] They note the applicant's claim that lot 98 was unfinancial. However they also say that even if the vote from lot 98 was included in the vote tally, it would not change the outcome of the motion - 7b would be yes-17, no-17, abstain 0 - this motion would not qualify.

7a would be yes- 17, no- 15, Abstain 1. This motion would qualify and be the body corporate's decision.

• [56] They say all unfinancial owners were treated equally. As the adjourned meeting was to be held the day after the levies were due, Ace BCM called each owner who was in arrears and who had placed a vote to ensure all voters had the ability to have their votes recorded. Ace BCM called by phone lots 30, 50, 98 and 100. Lots 30, 50 and 100 answered the call and decided to make payment so that they could vote. Lot 98 did not answer the call and did not return the call Ace BCM was unable to contact lot 98.
• [57] Lots 30, 50 and 100 paid the levies and submitted the remittance for the records. The remittance for lot 98 was not received prior to the meeting nor at the meeting and the funds had not been received by the body corporate bank prior to the meeting. There was no record of the payment at the time of the meeting. The levies were due in the body corporate account on the 1st April 2025 and the funds were not in the body corporate account on the 2nd April.
• [58] Ace BCM was recording the votes received from lot 72 when it became apparent that the voter had not submitted a company nominee form. To assist the owner in having all required paperwork so that the vote could be counted, Ace BCM called the voter to advise that they would be required to complete the company nomination form.
• [59] The owner advised that they did not have a printer so Ace BCM advised the owner to write the information in an email for record. The owner advised that they had not had prior contact with the BCM and that they were happy with the service that they were receiving regarding the AGM vote papers. The owner advised that they wanted to change their vote. To confirm the request of the owner, Ace BCM sent an email to the owner with the changes and the owner responded to acknowledge the request was as intended. The company nominee form and the votes were therefore recorded.
• [60] The BCM says the vote from lot 48 was accepted in email format because they believed it would be unreasonable to the owner a vote when their wishes were clear and the voter was eligible to vote.
• [61] The BCM also says the applicant submitted 3 votes of other lot owners (lots 84, 98 and 118) even after the committee members voted against allowing the applicant to collect votes on behalf of the body corporate. Nevertheless, the votes for lots 84, 98 and 118 were included in the vote tally.
  • [62] The owner of lot 44 says the applicant nominated Zack's Strata Management and as an individual owner as well as Secretary/Treasurer, is free to lobby in support of his preferred outcome. However, they believe his efforts to remove ACE can not be characterised as reasonable or representative of the body corporate.
  • [63] They disagree with the applicant's claim that a quorum was achieved on 26 March 2025. They say that 29 persons were present personally or by voting paper when a quorum of 30 were required. However on 2 April 2025, the adjourned date, there were 36 members present.
  • [64] They disagree with the applicant's claim that some votes submitted/resubmitted after 26 March 2025, and before or on 2 April 2025, are ineligible for inclusion. They also disagree that based on the vote tally for Motion 7, Zack's Strata Management was the preferred BCM. After allowing for additional/changed votes, the financial status of owners and other factors, 33 votes were considered eligible. They were one of the nine owners who submitted a vote between the first and second meetings. They say they had intended to submit their vote in person at the 26 March meeting but following the failure to reach the quorum, they submitted their vote prior to 2 April.
  • [65] Between the meetings, one owner (lot 89) elected to amend his/her vote for Motion 7 only. The latest / amended vote was included in the count of eligible votes.
  • [66] The delayed meeting coincided with the start of a new quarter affecting the financial status of four (4) owners. ACE successfully reached three (3) who subsequently paid outstanding amounts before the meeting opened on 2-Apr-25. A fourth owner (lot 98) could not be reached by ACE. Lot 98's receipt of payment did not arrive before the start of the 2-Apr-24 meeting. Without knowledge of the payment, ACE could not/did not include in the eligible vote count. Three of the four lots were recorded as financial.
  • [67] Another submission was received from the owner of lot 15 who asserts that the applicant's claims are unsubstantiated or based on misunderstandings, particularly concerning the appointment of ACE as Body Corporate Manager (BCM). They provide specific instances and documentation, such as meeting minutes and letters from other owners, to support their opposition to the application. It is submitted that his motion to convene an Extraordinary General Meeting (EGM) to overturn the Annual General Meeting's (AGM) decision to appoint ACE as the Body Corporate Manager (BCM) was based on a "possibility" of a quorum. They say the applicant's verbal appointment of the chairperson, Will Attwood, as his proxy for a committee meeting was rejected due to a lack of written authority.
  • [68] Another submission was made by the resident manager. He raises concerns that the applicant is not acting in the best interests of the lot owners as determined by their elected representatives.

• [69] The commissioner invited the committee and the other lot owners to make submissions about the matters raised by the applicant (s 243, Act). Ten submissions were received, three of which supported the application.
• [70] After the applicant replied to the submissions, the commissioner referred the application to departmental adjudication (s 248, Act).
• [71] I am satisfied the outcomes sought fall within the dispute resolution provisions of the legislation (ss 227 to 229 and 276, Act). I may make an order that is just and equitable in the circumstances to resolve the dispute.

• [72] The applicant is challenging the outcome of motions at the AGM on 26 March 2025, which was reconvened on April 2, 2025. Most votes were cast by voting paper. The Initial vote count on 26 March 2025 was as follows:

◦ Motion 7a (Ace): Yes 9, No 14, Abstain 1 (Does not qualify).

◦ Motion 7b (Zack's): Yes 16, No 9, Abstain 0 (Qualifies).

• [73] However the Declared Result of the Adjourned AGM on 2 April 2025 (the Final Declared Result) was:

◦ Motion 7a (Ace): Yes 17, No 15, Abstain 1 (Qualifies).

◦ Motion 7b (Zack's): Yes 16, No 17, Abstain 0 (Does not qualify).

• [74] The applicant alleges a lack of transparency and possible manipulation of votes by Ace BCM, claiming they took complete control of the voting, withheld documents, and failed to follow directives from the committee and himself. More specifically, the concerns raised by the applicant are as follows:

(a) A quorum might have been present at the initial AGM, making the adjournment unnecessary. If this was the case, Zack's Strata would have been successful.

(b) The body corporate manager may have accepted voting papers from "Unfinancial" Owners' Votes i.e. from lots 30, 50, and 100, which favoured Motion 7a. despite them being unfinancial according to the Aged Balance List of April 2, 2025.

(c) A vote from Lot 98 (favouring Motion 7b) was excluded due to "unfinancial" status, even though a payment receipt from April 1, 2025, was later obtained by the Secretary.

(d) The applicant alleges that the body corporate manager altered the vote from Lot 72 during a phone call with the owner to favour Motion 7a.

(e) The BCM may have accepted an email from Lot 48 as a vote paper without committee approval.

(f) Neither the Secretary nor the Chairperson was involved in vote counting at the AGM. The BCM maintained control over all vote documents and the BCM refused the applicant's request as Secretary to view votes and tally sheets, in conflict with Sections 103 & 104 of the Accommodation Module. The BCM instead of the Chairperson declared the vote results at the adjourned AGM on 2 April 2025.

• [75] There are 120 lots in the scheme so the necessary quorum is 30 lots. The BCM's records show that the following 29 lots were represented on 26 March 2025:

4, 15, 21, 28, 32, 34, 41, 44, 46, 47, 48, 49, 50, 53, 54, 55, 84, 89, 90, 94, 95, 98, 100, 107,

112, 113, 114, 117, 118.

• [76] The "Attendance Sign In Sheet" from 26 March 2025, provided by the applicant shows that lots 34, 44, 48, 50, 90 had not pre-voted. When this was reconciled with the number of votes on the tally sheet, it appeared that a quorum had been achieved. The applicant now agrees that lot 34 did not complete the Attendance Sign In Sheet for correctly because he failed to indicate on that sheet that he was a "pre-voter". This indicates that only 29 voters were represented on 26 March 2025.
• [77] However questions remains regarding the validity of the vote conducted at the adjourned general meeting on 2 April 2025. The applicant has raised the following concerns:
  • Whether lots 30, 50 and 100 were entitled to vote
  • Whether the voting paper from lot 98 was wrongly rejected
  • Whether the voting paper from lot 48 was wrongly included

Acceptance of lots 30, 50, and 100 Voting Papers & Rejection of lot 98 vote

• [78] Section 92(2) of the Accommodation Module provides as follows:

Displacement or disentitlement of right to vote

(2) A person does not have the right to exercise a vote for a particular lot on a motion, other than a motion for which a resolution without dissent is required, or for choosing a member of the committee, if the owner of the lot owes a body corporate debt in relation to the lot at the time of the meeting.

• [79] The applicant says the BCM accepted votes from Lots 30, 50, and 100 (which favoured Motion 7a) despite them being recorded as being "unfinancial" in the Aged Balance Report dated 2 April 2025.
• [80] The quarterly payment period for body corporate fees ended on 31 March 2025 and according to the Aged Balance Report dated 2 April 2025, Lots 30, 50, 98 and 100 had become unfinancial. However the aged balance list had not been updated and the BCM accepted a receipt from lot 50 describing payment made on 01/04/25 as well as receipts from lots 30 and 100 describing payments made on 02/04/25, as evidence that lots 30, 50 and 100 were "financial".
• [81] On the other hand however, the Secretary was provided with a copy of a receipt from lot 98 showing that a payment of $1,659.33 was made from their Bank Account to the account of the body corporate on 1 April 2025. However this vote was not accepted and not included in the count. The accepted votes from Lots 30, 50, and 100 all voted yes to motion 7a. The yes vote from Lot 98 for motion 7b.
• [82] I am of the view that the voting paper from lot 98 was wrongly excluded.
• [83] The respondent argues that even if the vote from lot 98 was included, the vote tally on Motion 7b would be Yes-17, No-17 and would not qualify. However, this would not be the case if it were found that one or more of the votes in favour of motion 7a was invalid. In this regard I note the applicant's argument that the votes from lot 48 and 72 and may have been invalid.

• [84] It is evident that the BCM accepted an email from Lot 48 instead of a voting paper (which also favoured Motion 7a). It is evident that lot 48 did not complete the voting paper, but by email to the BCM dated 27 March, listed each of the motion headings on the voting paper, with a "Yes" or "No" against each headings.
• [85] Sections 94 to 96 of the Accommodation Module govern the exercise of voting at general meetings.

A voter for a general meeting may vote on a motion, other than a motion to be decided by secret ballot, in any of the following ways -

(c) by casting a hard copy vote under section 95 ;

(d) by casting an electronic vote under section 96 .

(a) completing the voting paper as required by the accompanying instructions; and

(b) giving the voting paper to the secretary in a way mentioned in section 210 (2) before the start of the meeting.

(2) A hard copy vote on a motion may be withdrawn by a voter at any time before the result of the motion is declared, except that an owner's hard copy vote can not be withdrawn by a person voting as the proxy for the owner.

(1) This section applies if the body corporate has by ordinary resolution decided that voters may cast an electronic vote on a motion.

(2) The body corporate may pass a resolution mentioned in subsection (1) only if the body corporate operates a system for receiving electronic votes that -

(b) does not allow a person other than the secretary to receive the electronic votes.

(3) The system for receiving electronic votes may allow a voter who is present personally at the general meeting to cast a vote electronically at the meeting.

_Example -_The system may allow voters to cast a vote using a computer, smartphone or tablet

(4) Also, to cast an electronic vote a person must comply with -

(a) the instructions given by the secretary under section 78 (5) (f) , to the extent the instructions are consistent with a requirement mentioned in paragraph (b) , so that the secretary receives the vote -

(ii) if the system for receiving electronic votes allows a person to cast a vote electronically at the general meeting - at the meeting; and

(b) any requirement under the Electronic Transactions (Queensland) Act 2001 about how a document must be signed or sent electronically.

(5) An electronic vote on a motion may be withdrawn by a voter at any time before the result of the motion is declared, except that an owner's electronic vote can not be withdrawn by a person voting as the proxy for the owner.

• [89] Section 95 of the Accommodation Module provides that a voter casts a hard copy of a vote by completing the voting paper as required by the accompanying instructions and giving the voting paper to the secretary in a way mentioned in section 210 (2) before the start of the meeting.
• [90] As outlined above, the purported vote from Lot 48, which favoured Motion 7a, was accepted by the BCM even though it was in the form of an email to the BCM listed simply referred to the motion headings on the voting paper, with a "Yes" or "No" against each. Having regard to the foregoing, I am of the view that this purported vote was invalid.

• [91] The applicant says that the body corporate manager altered the vote for Motion 7 from Lot 72 during a phone call with the owner to favour Motion 7a, which the applicant believes conflicts with legislation and the BCM Code of Conduct. This was supported by a number of other owners who say the actions of the BCM, particularly as they relate to Motion 7, lacked transparency, neutrality, and accountability due to the BCM's actions and unmanaged conflict of interest.
• [92] There is no prohibition on changing a vote and the legislation contemplates a written vote being withdrawn before the result of a motion is declared and a vote being made at a general meeting by show of hands. It is possible that a voter may decide to change the person's written vote on a motion. It is conceivable the validity of a changed vote may be impugned where there was undue pressure to induce a person to change a vote. However in the absence of further evidence I am unable it to invalidate the vote by lot 72.

• [93] The outcome requested by the applicant is that the result of the Group of Same Issue Motion 7 be amended and that as a result:

(i) Motion 7b is ruled as the qualifying motion with the highest number of votes in favour and

(ii) The body corporate resolve to act in accordance with motion 7b

• [94] The Declared Result of the Adjourned AGM on 2 April 2025 was:
  • Motion 7a (Ace): Yes 17, No 15, Abstain 0 (Qualifies).
  • Motion 7b (Zack's): Yes 16, No 17, Abstain 0 (Does not qualify).
• [95] However based on the above findings, I believe that (i) the vote from lot 98 was valid and should have been included and (ii) the vote from lot 48 should not have been included.
• [96] Therefore the outcome of voting should be:
  • Motion 7a (Ace): Yes 16, No 16, Abstain 1.
  • Motion 7b (Zack's): Yes 17, No 16, Abstain 0 (Qualifies)

• [97] I believe the applicant as well as Mr Attwood, the Chairman, and a number of others have raised valid concerns regarding a lack of transparency and oversight of the BCM who took exclusive control of vote collection and counting and denied independent observation.
• [98] The Chairperson and Secretary say that at the AGM on 26 March 2025, they were excluded from vote counting and that the Body Corporate Manager (BCM) and an assistant insisted on complete privacy to handle voting papers, without any committee oversight. The Chairperson and Secretary were not permitted to participate in, or witness the vote counting, meaning all pre-submitted votes were handled exclusively by the BCM's team. There was no transparent process to verify how postal votes were opened and tallied, with some postal votes dated as received the day before the AGM, suggesting they were opened and counted in advance.
• [99] It is concerning that the Chairperson and Secretary were not permitted to participate in, or witness the vote counting and that the BCM made unilateral decisions about accepting or rejecting votes from certain lots, a process that should be transparent, giving rise concerns about selective inclusion/exclusion of votes.
• [100] I note that subsequent to the AGM, the applicant submitted a motion to the committee proposing that an Extraordinary General Meeting (EGM) be convened to overturn the AGM decision on the BCM appointment (motion 7a). However that motion was rejected on a number of grounds that included (i) a concern about the risk of substantial legal fees and (ii) potential compensation to Ace BCM under Section 310 of the Act if the decision were overturned.
• [101] In this regard I would point out that section 310 of the Act provides as follows:

310 Protection of persons dealing with body corporate

If a person, honestly and without notice of an irregularity, enters into a transaction with a member of the committee for the body corporate for a community titles scheme or a person who has apparent authority to bind the body corporate, the transaction is valid and binding on the body corporate.

• [102] For the above reasons I have made the following orders:

1. I declare that the owners of Lot 98 did not owe a body corporate debt at the date of the adjourned annual general meeting on 2 April 2025 and their vote was improperly rejected.
2. I further declare that the claimed vote by the owner of lot 48 was invalid and improperly accepted as a valid vote.
3. I declare that therefore the correct result of voting on the Group of Same Issues Motions 7, "Appointment of Body Corporate Manager" was as follows:

(i) Motion 7.b. was the qualifying motion with the highest number of votes in favour,

(ii) The body corporate resolved to engage ZACK's Strata as Body Corporate Manager for a term of 12 months

1. I order that the body corporate must amend its records, and the results of voting on motions considered at the adjourned annual general meeting on 2 April 2025, by including votes cast by lot 98 and excluding votes cast by Lot 48.

[1] Group of Same Issue Motions 7 - Engagement of Body Corporate Manager