Body Corporate and Community Management Act 1997 (Qld) (Act), sections 227(1)(b) and 229(3)(a)

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

GENERAL MEETING MOTIONS; GENERAL MEETING PROCEDURES - whether the body corporate validly disregarded votes at a general meeting because the lot owners owed body corporate debts, or because a voting paper arrived at the body corporate manager's post box some 15 minutes after it was last checked one hour prior to the meeting; whether votes cast on behalf of corporate lot owners should be deemed invalid because the corporate nominees were not on the body corporate roll when they lodged their voting papers prior to the meeting.

Act, ss 100(5), 106, 108, 110(3); Accommodation Module, ss 91(1), 92(2), 95(1), 156(6), 210(2), 211; Acts Interpretation Act 1954, s 39A(1)(b).

• [1] This is one of two applications I have decided concurrently challenging decisions purportedly made at an extraordinary general meeting (EGM) on 7 February 2025. The other is Flinders Village [2025] QBCCMCmr 216.
• [2] In this application, Mr Watson argues that several votes were incorrectly disregarded at the EGM. To correct matters, he seeks orders declaring that:
  1. motions 1, 2A, and 15 were not carried, and
  2. motions 2B, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, and 14 were carried.
• [3] He also claims that the people who voted on behalf of lots 7, 11, 13, 14, 29, 30, 33, 34, 35, 36, 46, and 48 were not on the body corporate roll as the corporate nominees of the lot owners. He asks that their votes be declared invalid.

• [4] The minutes of the EGM report the following results:

Motion 2A carried 242 CSLE[1] (24 votes) yes, 210 CSLE (21 votes) no

Motion 2B failed 200 CSLE (20 votes) yes, 252 CSLE (25 votes) no

• [5] However, Mr Watson submitted copies of 25 voting papers with votes against motions 1, 2A and 15, and in favour of motions 2B to 14. That could not change the outcome for motions 2B and 15, but it could potentially change the body corporate's decision on the remaining motions.

• [6] Motion 2B was decided by poll vote, meaning it could pass:

...only if the total of the contribution schedule lot entitlements for the lots for which votes are counted for the motion is more than the total of the contribution schedule lot entitlements for the lots for which votes are counted against the motion.[2]

• [7] The community management statement for Flinders Village shows the contribution schedule lot entitlements (CSLEs) for each lot to be 10, except lot 51 which has 12. It is evident in the votes recorded in the minutes that lot 51 must have voted in favour of motion 2A and against motion 2B. That means the votes held by Mr Watson, which were cast against 2A and in favour of 2B, must have been worth 10 CSLEs each. So even if all 25 votes were valid, motion 2B would still have failed with 250 CSLEs in favour and 252 against.
• [8] Mr Watson questions whether a poll vote was validly requested, but it does not matter. Without a poll vote, motion 2B would have failed to achieve an ordinary resolution even if the correct count was 25-25.[3]
• [9] Likewise, motion 15 required a special resolution and failed irrespective of whether 21 or 25 votes were cast against it.[4]
• [10] With respect to the other motions, the difference between Mr Watson's 25 votes and the votes recorded in the minutes appears to be due to the following:
  1. the body corporate did not count lot 16's vote because it claimed not to have received it in time
  2. the body corporate excluded the votes cast by lots 21 and 45 because they were deemed to owe body corporate debts, and
  3. the body corporate claims that the voting paper from lot 22 held by Mr Watson is fraudulent.

• [11] Mr Watson submitted an Australia Post tracking document showing that some unspecified item was delivered at 9:14am on 7 February. While the document does not identify the item or sender, the body corporate did not dispute that the record related to lot 16's voting paper, nor claim that lot 16's voting paper was never received.
• [12] The body corporate manager said only that the voting paper was not in his post box when he checked it at 9am and he could not be blamed for the exclusion of the voting paper as he had to drive for 45 minutes to reach the EGM venue.
• [13] That is understandable. Nevertheless, the Accommodation Module says:

(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.[5]

• [14] The ways mentioned at section 210(2) include "by post", and section 211 says that a requirement to give a document to the secretary may be satisfied by giving it to a body corporate manager. The Acts Interpretation Act says service by post is "taken to have been effected at the time at which the letter would be delivered in the ordinary course of post, unless the contrary is proved".[6]
• [15] It appears that lot 16's voting paper was given to the body corporate manager on behalf of the secretary at 9:14am on 7 February, which was before the start of the EGM. Accordingly, lot 16 validly cast a hard copy vote. It should have been taken into account when deciding the motions at the EGM.

• [16] Mr Watson does not dispute that lot 21 owed a body corporate debt at the time of the EGM. According to section 92(2) of the Accommodation Module:

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.

• [17] The debt apparently arose because contributions were paid late, incurring penalty interest. I gather the contributions have been paid, but the penalty interest has not, or at least had not at the time of the EGM.
• [18] Mr Watson says that lot 21 wrote to the body corporate committee on 24 September 2024 and asked it to waive the penalty interest. The committee has a discretion to waive penalty interest if satisfied there are special reasons.[7] But Mr Watson says the committee failed to make a decision on the request.
• [19] That may be so, but it is a leap from there to the conclusion that lot 21 should have been treated at the EGM as though it owed no body corporate debt. Had the committee decided lot 21's request prior to the EGM, I cannot be sure what decision it would have made. The committee is obliged to act reasonably when making a decision,[8] but that does not compel it to reach any particular conclusion. As Justice Carmody put it:

[25] ...being reasonable in making decisions and voting at meetings is not the same as making reasonable decisions or resolutions. This distinction between assessing the reasonableness of conduct as opposed to its consequences in the fulfilment of a duty is a vital one...

[47] A legally reasonable decision is not a uniquely right one. It involves matters of degree about which contrary - even opposite - conclusions can be reasonably reached on the same body of evidence by different lines of reasoning or by reference to other determinants without either being demonstrably right or manifestly wrong.

[95] Neither the reasonableness of the committee's resolution nor the merits of its reasons was in issue; only whether it acted reasonably in reaching it was.[9]

• [20] Mr Watson says that lot 21 was entitled to vote on motions 3 to 9 irrespective of whether it owed a body corporate debt, as those motions related to "choosing a member of the committee" (in the language of section 92(2) above). Each of those motions proposed removing a committee member from office and replacing them with someone else.
• [21] But Mr Watson is misreading section 92(2). A person who owes a body corporate debt may not vote:
  1. on a motion (other than a motion requiring a resolution without dissent), or
  2. for choosing a member of the committee.
• [22] The section was clearer in the 2008 version of the Accommodation Module. Section 82(2) of that version read:

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.

• [23] The explanatory note for the 2008 version described the effect of the section in these terms:

The clause also provides a person does not have the right to exercise a vote for a particular lot on a motion, 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.

• [24] The brackets were traded for commas in 2020, but there was nothing in the explanatory material to suggest there was any intention to change the meaning.
• [25] I am not persuaded that lot 21 should be regarded as having not owed a body corporate debt at the time of the EGM, nor that it was permitted to vote on choosing members of the committee if it did owe a body corporate debt.

• [26] The body corporate claims that the version of lot 22's voting paper submitted by Mr Watson is fraudulent. It provided an affidavit from the owner of lot 22, Ms Huff, claiming that the voting paper is not hers. She points out that it is not her signature and her first name has been misspelt. She submitted a copy of her Photo Identification Card confirming both claims. The Registrar of Titles' records for lot 22 also show the correct spelling of her first name, which is not how it is spelt on the voting paper submitted by Mr Watson.
• [27] In reply, Mr Watson did not insist that the voting paper he submitted for lot 22 was genuine. He said only that he believed it was genuine when he submitted it, and he is cooperating with the police's inquiries.
• [28] I am not satisfied that the owner of lot 22 voted as represented by Mr Watson.

• [29] Adjudicator Miskinis found in Flinders Village [2025] QBCCMCmr 87 that the amounts lot 45 was believed to owe the body corporate were not a body corporate debt as defined in the Accommodation Module.[10] He ordered them removed from lot 45's account, and the body corporate says it has complied.
• [30] Hence, lot 45 did not properly owe a body corporate debt at the time of the EGM and its vote should have been counted.

• [31] With the voting papers for lots 21 and 22 disregarded, the voting papers submitted by Mr Watson show 23 votes against motions 1, 2A and 15 and in favour of motions 2B to 14. If the results recorded in the minutes were changed to reflect that, it would not change the body corporate's decision on any motion. The new totals would be as follows:

Motion 2A carried 242 CSLE[11] (24 votes) yes, 230 CSLE (23 votes) no

Motion 2B failed 250 CSLE (25 votes) yes, 252 CSLE (25 votes) no

• [32] Consequently, I will not order that any of these decisions should be changed.

• [33] Mr Watson also asks that the votes cast for lots 7, 11, 13, 14, 29, 30, 33, 34, 35, 36, 46, and 48 are declared invalid because the people who voted were not on the body corporate roll as the corporate nominees of the lot owners. He refers to the definition of "voter" at section 91(1) of the Accommodation Module:

A voter for a general meeting of the body corporate is an individual -

(a) whose name is entered on the body corporate's roll as -

• [34] He submitted several past versions of the body corporate roll to demonstrate his point.
• [35] The body corporate says corporate nominee forms were distributed with the notice of meeting and an updated version of the roll showing the nominees was printed on the day of the meeting. Mr Watson argues that was too late, as the nominees had already lodged their written or electronic votes.
• [36] Votes are tallied and motions decided and declared at general meetings, notwithstanding that written and electronic votes might be cast beforehand. That is the relevant time to decide their validity. If the corporate nominees who voted on behalf of those lots were on the body corporate roll during the EGM, they were voters as defined at section 91(1).
• [37] But even if they were not on the roll at the time of the EGM, I would not deem the votes they cast void on that basis alone. Despite any administrative failings that may have existed, there is no suggestion that lots 7, 11, 13, 14, 29, 30, 33, 34, 35, 36, 46, and 48 were not entitled to vote at the EGM, nor that the votes cast on their behalf did not reflect their will. Their nominees are now properly recorded on the body corporate roll, so any irregularity that existed has been corrected. Matters would not be improved by retrospectively disenfranchising the lot owners.

• [38] For these reasons, the application is dismissed.

[1] Contribution schedule lot entitlements.

[6] Acts Interpretation Act 1954, s 39A(1)(b).

[9] Body Corporate For Beaches Surfers Paradise v Backshall [2016] QCATA 177.

[11] Contribution schedule lot entitlements.