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

AGM PROCEDURES - How Notice of AGM may be given - whether Notice required to be given by email

Act, ss 227, 228, 276; Standard Module, ss 99, 216, 218

• [1] Mulawa Court consists of 8 lots and is located at 10 Allara Ave Palm Beach Qld. It is regulated by the standard module and managed by STM Strata Coolangatta.
• [2] The applicant is the owner of lot 7 and seeks the following outcome against the body corporate:

That the 2023 AGM held on 2nd April 2024 be declared invalid because nobody attended that meeting and the notices were not emailed to owners 21 days before it was held.

• [3] The applicant states that he has owned unit 7 since 2015, and recently moved in permanently. All the other units, including lot 6 which is owned by the chairman, are occupied by tenants.
• [4] The applicant says that not long after purchasing the unit, he attended the previous Tweed Heads office of STM, the body corporate manager, and advised of his email address. However the applicant claims that STM failed to email important documents like AGM notices and invoices to him.
• [5] When he raised this matter with the body corporate manager he was advised that all communication should be via the chairman. However he also says that the chairman's contact details were not available to Lot owners.
• [6] Initially, the applicant was in dispute with the body corporate because on 8th March 2023, STM claimed there was a problem with an unpaid invoice. However the applicant says that the invoice was not emailed before the due date and STM confirmed that no reminder was emailed. On 9th March 2023, he phoned STM and offered full payment of the levies and at no stage did he refuse to pay the levies or agree to pay any fees or charges. The applicant says he is disappointed that STM decided to withhold his emailed offer from the other Lot owners.
• [7] On 8th December 2023, he emailed the previous STM manager to reiterate that STM had not responded to his email or suggested an alternative payment plan to finalise the levies. At the delayed 2023 AGM, STM reappointed themselves as managers and signed the agreement on 11th of April 2024.
• [8] In an effort to resolve this dispute the applicant applied for conciliation by this Office and a conciliation session was scheduled for 1st May 2024. However the scheme was not represented at the session, and STM subsequently advised the applicant that this was because the scheme did not have a valid committee.
• [9] The applicant also states that he attended the August 2024 AGM, where he asked to inspect the body corporate roll. However his request was denied. The chairperson confirmed with her supervisor that the Strata roll is not available and stated that a Lot owner is required to engage a strata search agent. He has subsequently received advice that he is entitled to access the body corporate roll and that the roll must be made available to a committee member at no cost. To obtain access to the roll and avoid any further fees and charges, at the adjourned September 2024 AGM he nominated from the floor for the vacant Secretary position.
• [10] The applicant notes that according to the strata roll, lot owners have provided their email addresses to STM strata. He is of the view that subsection 216(4) of the standard module provides that if the address given to the body corporate includes an email address, then that is the address for services of any documents by the body corporate.
• [11] He says that the body corporate manager failed to email important documents like AGM notices and invoices to him. He is therefore seeking an order that the 2023 AGM, held on 2nd April 2024, be declared invalid because notices were not emailed to owners 21 days before it was held.
• [12] Pursuant to section 243 of the Act, all lot owners and the body corporate were invited to make submissions regarding the outcome sought by the applicant. No submissions relevant to the application were received. One lot owner stated that body corporate fees had increased.

• [13] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1]
• [14] Prima facie, this is a dispute within the context of a community titles scheme and of a nature intended to be dealt with by processes under Chapter 6 of the Act.[2]

• [15] The outcome sought by the applicant is as follows:

That the 2023 AGM held on 2nd April 2024 be declared invalid because nobody attended that meeting and the notices were not emailed to owners 21 days before it was held.

• [16] The nub of the applicant's argument is that if the address given to the body corporate includes an email address, then that is the address for services of any documents by the body corporate.
• [17] Section 216 of the Standard Module provides as follows:

(1) The address for service for an owner of a lot, or a relevant person, must include -

(b) if the owner, or relevant person, does not give an address mentioned in paragraph (a) - the residential or business address, whether inside or outside Australia, as last notified to the body corporate for the owner or relevant person.

(2) Also, the owner of a lot, or a relevant person, may nominate an email address to be part of the address for service mentioned in subsection (1) .

(3) If there are 2 or more co-owners for 1 lot, there must be only 1 address for service for the owners.

(4) If the address for service includes an email address under subsection (2) , the owner of a lot is taken to have consented to being given or served with, by email, any document or information that may be given to, or served on, the owner under the Act .

• [18] Section 218 of the Standard Module provides as follows:
  1. Giving documents or information to lot owners or relevant persons- Act s 315A

(a) if the document or information is given under sections 163 (3) (a) , 219 to 222 , 233A or 233C - the way stated in the section is prescribed; or

(b) otherwise - the following ways are prescribed -

(i) delivering it to the owner, or relevant person, personally;

(ii) sending it to the owner's, or relevant person's, address for service;

(iii) if an agreement exists between the owner, or relevant person, and the body corporate that provides for the owner, or relevant person, to nominate another way for the document or information to be given - in accordance with the agreement.

_Example of a nominated way of receiving documents for subparagraph (iii) - _

A lot owner nominates that a body corporate may give the owner a document by sending the owner written instructions on how the owner may access and download a document from an online file-sharing website.

• [19] Subsection 216(4) provides that if the address for service includes an email address, the owner of a lot is taken to have consented to being given or served with, by email, any document or information that may be given to, or served on, the owner under the Act .
• [20] However I do not believe that the body corporate is compelled to address all correspondence to the email address of a lot owner. Rather, the body corporate has a discretion to deliver documents or information (1) personally, (2) by post or (3) by email, unless there is an agreement between the body corporate and a lot owner that documents or information will be provided in a specific way.[3]
• [21] It is evident from documentation supplied by the applicant[4] that hard copies of the Notice of AGM and Agenda were sent to lot owners, including the applicant on 7 March. As the relevant AGM was held on 2nd April 2024, I am of the view that at least 21 days notice of the AGM was given as required by section 91 of the standard module.
• [22] The next matter that arises for consideration is the applicant's argument that the AGM should be declared invalid because nobody attended that meeting. Section 99 of the standard module requires that a quorum be present for a general meeting. In simple terms the requirement for a quorum is 25% of voters, including 2 voters being personally present.[5]
• [23] However it should also be noted that section 100 of the standard module provides that if a quorum is not formed within 30 minutes, the general meeting may be adjourned.
• [24] If a quorum is not present, the chairman can conduct the meeting.
• [25] If the chairman is not present, a body corporate manager with the delegated powers of the chairperson can conduct the meeting.
• [26] It should also be noted that Section 99 of the Standard Module provides that the body corporate may pass an ordinary resolution to allow owners attending a general meeting via electronic means.
• [27] For the above reasons the application is dismissed.
• [28] Finally, I refer to the availability of the body corporate roll. Section 205 of the Act and section 233 of the standard module require a body corporate to provide access to a body corporate's records within seven days after receiving:
  1. a written request from an 'interested person'; and
  2. the fee prescribed under the regulation module applying to the scheme.
• [29] An 'interested person' includes an owner, buyer or their agent, or anyone else with a proper interest in the information.
• [30] Similarly, the standard module provides for committee members to have 'reasonable access' to body corporate records without the payment of a fee.

[2] See sections 227, 228, 276 and Schedule 5 of the Act

[3] See ss 163(3)(a), 218(b)(iii) standard module

[4] Email communications with STM dated 4 November 2024

[5] Section 99(2) provides that a body corporate may decide by ordinary resolution that a voter is personally present by means such as teleconferencing or videoconferencing