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

GENERAL MEETING PROCEDURES - whether it was valid for all motions at an annual general meeting to be decided by secret ballot; whether some motions might be declared void, notwithstanding that the committee resolution recommending the use of secret ballots stands unchallenged.

Act, ss 100(5), 108-110, 242; Standard Module, ss 15(3), 108(1).

[1] The applicant objects to the use of secret ballots to decide all motions at an annual general meeting (AGM) on 30 June 2025. The use of secret ballots denied the applicant the opportunity to have the motions decided by a poll of voters' lot entitlements, substantially reducing its voting power.

[2] The applicant's lawyer queried the body corporate committee about the use of secret ballots prior to the AGM and was told:

The committee had good reasons in the particular circumstances to recommend that each motion be decided by way of secret ballot, including:

a. So that uncontroversial motions do not become a source of conflict

b. So that owners may vote freely without fear of repercussions of expressing their vote; and

c. To permit the unfettered exercise of voting rights, in circumstances where there are disputes between the body corporate and sectional interests in the scheme (including your client).

Contrary to the unevidenced assertion in your correspondence, we are instructed that the committee's recommendation as to a secret ballot were not designed to deny your client (or others) the right to exercise poll voting rights. There is no basis to your client's assertion in that regard.

(a) The committee was of the view, informed by advice from a strata manager, that there was a greater likelihood for errors and voter confusion where some but not all motions were to be determined by secret ballot, as opposed to where all motions were to be determined by secret ballot.

(b) There remains an ongoing dispute between the applicant and the body corporate regarding the rectification of a retaining wall destroyed during Cyclone Alfred. The applicant has refused access to the body corporate via the waterway to enable the necessary repair.

(c) There is a long history of tension and dispute at the scheme between residential and commercial interests.

(d) Based on the above, the Respondent submits that the Secret Ballot Recommendation was lawful and reasonable. ln the circumstances, the decision was not arbitrary but a proportionate governance response to persistent conflict within the scheme. The committee acted within power, reasonably and for a proper purpose to preserve the integrity of decision-making and promote stable administration of a historically contentious mixed-use scheme.

1. denies it has a dispute with the body corporate, or that there are otherwise disputes between the body corporate and "sectional interests"
2. claims there is no evidence of coercion or intimidation warranting secrecy, and
3. argues the committee unreasonably misused its power to recommend a secret ballot to deprive the applicant of its usual statutory voting rights.

[5] The applicant is particularly concerned that the resolutions in favour of motions 10, 11, 12 and 15 will increase the body corporate's costs, which are disproportionately borne by the applicant due to its higher lot entitlements. The applicant seeks orders in the following terms:

a. that the resolutions passed as Motions 10, 11, 12, and 15 at the Hope Harbour AGM be declared invalid and of no effect

b. that within 30 days from the date of these Orders, the Respondent convene an Extraordinary General Meeting of the body corporate, in accordance with the requirements of the Act, at which the agenda must include for determination the motions in the same terms as Motions 10, 11, 12, and 15 of the AGM Notice.

[6] By default, each lot can cast one vote on a motion to be decided by ordinary resolution at a general meeting, and the motion passes if more lots vote in favour than vote against.[1] But if an owner requests a poll, each lot's vote will be weighted according to its contribution schedule lot entitlements as recorded in the community management statement for the scheme.[2] That makes a significant difference to an owner like the applicant, who owns 8 of 90 lots (some 8.9%), but whose lots have 23.7% of the total contribution schedule lot entitlements.

[7] However, poll voting is not available where a motion is decided by secret ballot,[3] presumably because the process is anonymous. The returning officer does not know which lot cast each vote and therefore cannot discern its lot entitlements.

[8] A general meeting motion "must" be decided by secret ballot if "the committee has recommended that the motion be decided by secret ballot".[4] The committee resolved "that all motions on the agenda of the 2025 AGM be determined by secret ballot" on 5 June 2025.

[9] The legislation provides no guidance about the circumstances in which the committee might make such a recommendation. It is seemingly only subject to the committee's overarching duty to act reasonably when making a decision.[5]

[10] Where satisfied that a committee has recommended the use of secret ballots solely to prevent the use of polls, rather than out of any genuine need for secrecy, adjudicators have concluded that the committee acted unreasonably and committed a fraud on the power.[6]

[11] I have some reservations about the committee's expressed reasons for its decision of 5 June. There is little evidence of the claimed conflict, dispute, tension, or repercussions, and little explanation of how those things might be triggered by "uncontroversial" motions. I do not doubt that owners at Hope Harbour Marina would have different views of the various proposals presented to the AGM. That is unremarkable and is usually resolved by ordinary open voting. It would be unusual at any scheme for all motions to be decided unanimously, but that is not usually seen as cause for secrecy.

[12] The committee referred to three previous orders in support of its claim of a "long history of tension and dispute".[7] All three concerned a previous owner of the applicant's lots' use of the common property. There was no suggestion in the orders of intimidation, coercion, or "repercussions" such as might usually be seen to warrant protection of voters' identities. Even if there was, that owner has now left the scheme.

[13] None of the motions at the AGM related to the disputed retaining wall, and nothing that either side said about that dispute indicated that owners might feel uncomfortable openly taking a position on it.

[14] Given that committee elections are conducted by secret ballot by default,[8] while most other business at a general meeting is decided by open voting by default,[9] it is very common for owners to have to vote differently on different motions.

[15] Nevertheless, as the committee points out, no orders are sought in relation to its resolution of 5 June 2025. While the applicant seems to argue that the decision was unreasonable, it has not sought an order that it was void. Nor did it apply within the three months permitted for such an order, or present any arguments that the time limit should be waived.[10]

[16] In its reply to submissions, the applicant contested the need to challenge the 5 June committee resolution, arguing:

The gravamen of the Applicant's complaint is the unlawful method of voting employed to determine substantive motions, not merely the antecedent procedural resolution. The motions the subject of the Adjudication Application were conducted by secret ballot in circumstances not authorised.

... the unlawful procedure directly affects the validity of the motions, independently of any enabling resolution.

[17] But the method of voting employed at the AGM was not unlawful while the committee resolution stands unscathed. To the contrary, secret ballots were mandatory in that circumstance:

_A motion to be decided at a general meeting of the body corporate must be decided by secret ballot if - _

...

(b) the committee has recommended that the motion be decided by secret ballot...[11]

[1] Act, s 108

[2] Act, ss 109-110.

[3] Act, s 109(1).

[4] Standard Module, s 108(1)(b).

[5] Act, s 100(5).

[6] E.g. 211 Ron Penhaligon Way Offices [2025] QBCCMCmr 59; Ocean Resort Village (No 1) [2020] QBCCMCmr 564; North Shore Village [2011] QBCCMCmr 160; Teneriffe Hill Apartments [2005] QBCCMCmr 71.

[7] Hope Harbour Marina [2020] QBCCMCmr 366; Hope Harbour Marina [2020] QBCCMCmr 538; Hope Harbour Marina [2021] QBCCMCmr 37.

[8] Standard Module, s 15(3).

[9] Standard Module, s 108(1).

[10] Act, s 242.

[11] Standard Module, s 108(1). My bolding.