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

GENERAL MEETING RESOLUTION - where a motion was decided by secret ballot - whether the electronic voting system complied with the legislative requirements; whether the returning officer was validly appointed and performed their functions in compliance with legislation; whether there is any basis for the resolution to be declared void.

Accommodation Module, ss 99, 101,102,

• [1] This matter relates to a motion conducted by secret ballot.
• [2] The applicant is a lot owner at the scheme. He has brought this application against the body corporate disputing the validity of a motion passed at the annual general meeting held on 17 December 2024 (AGM).
• [3] The disputed motion (Motion 10) proposed a variation of the caretaking and letting agreements to include an option for a further period of 3 years. The vote was conducted by secret ballot and the motion was passed by ordinary resolution with 37 yes votes and 36 no votes. Four votes were deemed invalid by the returning officer.
• [4] The applicant challenges the validity of Motion 10 on the following grounds:
  1. The AGM notice and secret ballot information misrepresented Motion 10 as being submitted by the committee when in fact it was submitted by the caretaking service contractor, Zenbar (Aust) Pty Ltd (Zenbar).
  2. The secret ballot system did not comply with the requirements of the Accommodation Module.
  3. The appointment of the returning officer did not comply with the requirements of the Accommodation Module.
  4. The conduct of the AGM did not comply with the requirements of the Accommodation Module.
  5. The returning officer did not comply with the requirements of the Accommodation Module.
• [5] For these reasons, the applicant submits that Motion 10 should be deemed void.

• [6] Riverside Hamilton is a community titles scheme comprising 189 lots and common property. The scheme is regulated by the Accommodation Module.
• [7] I am satisfied that this matter falls within the dispute resolution provisions.[1] An adjudicator may make an order to resolve a dispute in the context of a community titles scheme between a lot owner and the body corporate regarding a claimed contravention of the Act.[2] Specifically, an adjudicator may make an order declaring that a resolution purportedly passed at a general meeting was, at all times void.[3]
• [8] The commissioner invited submissions from the committee, the returning officer and all lot owners in the scheme. Submissions were received from:
  • Zenbar, as the owner of Lot 30207 and caretaking service contractor;
  • the committee;
  • Nicole Anwoir as the returning officer; and
  • five individual lot owners in support of the application.
• [9] The applicant did not make a reply to submissions. The commissioner then referred the matter to department adjudication.
• [10] I have investigated the application including the submissions, the most relevant of which will be referred to in the analysis below.

• [11] The application raises 5 broad grounds in support of the order sought to deem Motion 10 void. I will consider each of these in turn.

• [12] The applicant says that the AGM notice and the secret ballot information misrepresented that Motion 10 had been submitted by the committee, when in fact it was submitted by Zenbar, and that this misrepresentation unduly influenced owners to vote in favour of the motion.
• [13] The committee submits that the motion was submitted by the body corporate manager and that the reference in the AGM notice and the secret ballot information to "the committee" was an inadvertent oversight. It says a mistake of this nature is insufficient to render the resolution void unless it can be demonstrated that one or more lot owners who voted 'yes' would have voted differently on the motion, and that such votes would have changed the outcome of the motion. The committee says the applicant has not demonstrated either of these things and thus the alleged 'misrepresentation' is not a ground to void the resolution.
• [14] I note one lot owner who supports the application submits that she was informed by some owners that they voted 'yes' to Motion 10 on the understanding that if the committee had endorsed the motion, then it would be safe and advisable to support it. However, no evidence has been presented to substantiate this claim, or to demonstrate that those owners would have voted against the motion had it been correctly noted as being submitted by Zenbar.
• [15] At times, the validity of a resolution may come into question where the notice of the proposed motion is misleading as to what is really being proposed, or its effect and implications.[4] However, there are no such misleading concerns here. While there was a mistake on the AGM papers as to who submitted the motion, the content of the motion, and its effect were clear. There is no question that Motion 10 proposed a variation of the caretaking and letting agreements to extend them for a further period of 3 years. It cannot be said that there was any hint of voters being misled in this regard.

• [16] The applicant claims that the electronic secret ballot system adopted by the body corporate does not comply with section 101 of the Accommodation Module.[5]
• [17] Section 101 provides as follows:

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

(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 -

(c) does not allow a person other than the returning officer 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.

The system may allow voters to cast a vote using a computer, smartphone or tablet computer.

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

(a) the instructions given by the secretary under section 78(5)(g), to the extent the instructions are consistent with a requirement mentioned in paragraph (b), so that the returning officer 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 before the votes are counted; and

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

• [18] Firstly, the applicant claims that the body corporate did not pass an ordinary resolution to allow electronic voting for a motion to be decided by secret ballot. I am satisfied however that the body corporate did pass such a resolution at the annual general meeting held on 16 December 2021. Pursuant to Motion 8 of that meeting, the body corporate resolved that, on the availability of a suitable electronic voting system, voters for a general meeting be able to cast an electronic vote on each open and secret motion to be decided, and for the election of a committee.
• [19] While there was no decision made about the particular voting platform to be adopted, I am satisfied the body corporate has complied with section 101(1) by authorising voters to cast an electronic vote on a motion to be decided by secret ballot.

• [20] The next issue is whether the body corporate's system for receiving electronic votes is one that complies with the statutory requirements for a secret ballot.
• [21] The applicant alleges that the body corporate's electronic voting system is non-compliant as it:
  1. allows a person other than the returning officer to receive the votes[6];
  2. does not reject a vote cast by a person who is ineligible to vote;[7] and
  3. allows a voter to cast more than one vote.[8]
• [22] The applicant alleges the voting platform allowed a person other than the returning officer to receive the electronic votes. His basis for this assertion seems to be that the body corporate only appointed the returning officer on 17 December 2024 which was the day after online voting had closed.
• [23] Ms Nicole Anwoir was the appointed returning officer for the meeting. She submits that the secret ballot for Motion 10 was conducted using a platform called JotForm, and that the form was custom-built to meet procedural requirements including that it was accessible only to her as the returning officer.
• [24] I note that owners' access to the body corporate's online voting system closed at 4:30 on 16 December 2024. I also note the instrument appointing Ms Anwoir as the returning officer is signed and dated 17 December 2024. This however does not imply that a person other than Ms Anwoir must have received the electronic votes simply because she did not sign the appointment instrument until 17 December 2024.
• [25] The submitted material indicates Ms Anwoir commenced communicating with the body corporate and preparing for the secret ballot prior to 17 December 2024. On 18 November 2024, Ms Anwoir emailed the JotForm voting link (and related QR code) to the body corporate manager for it to be included in the AGM material. Ms Anwoir considers her appointment to have commenced on the date she received instructions from the body corporate manager and when she sent out the JotForm voting link.
• [26] I also note that upon the submission of an electronic vote on Motion 10, an acknowledgement of receipt email is sent from 'Nicole Anwoir<noreply@jotform.com'. This further indicates to me the votes were received by the returning officer and not by another person. The onus is on the applicant to make his case. He has not provided any credible argument or evidence that indicates the voting platform allowed a person other than Ms Anwoir to receive the electronic votes. There is no basis for me to conclude that the system failed to comply with section 101(2)(c) of the Accommodation Module.
• [27] Next, the applicant claims that the body corporate's electronic voting system, VoteMax failed to comply with section 101(2)(b)(i) of the Accommodation Module which requires that a body corporate's system for receiving electronic votes must reject a vote cast by a person who is not eligible to vote on the motion. The applicant claims the system did not do so, resulting in the vote cast for Lot 31104 being accepted upon submission, only to be later rejected at the AGM.
• [28] It should be clarified at this point that the electronic voting system utilised for the secret ballot was not VoteMax. I understand VoteMax is the system that the body corporate uses generally for electronic voting and was the system employed for this AGM. However, the secret ballot for Motion 10 was conducted using a platform called JotForm. In her submission, Ms Anwoir says that JotForm was used exclusively for the secret ballot as VoteMax did not support the functions required for a secret ballot.
• [29] Lot 31104 is owned by Ellingham Holdings Pty Ltd. Ms Anwoir explains that she invalidated the vote for this lot as it was received under the name of 'Richard Ellingham' which did not match the name of the corporate nominee on the roll ('Brem Ellingham'). Further, Ms Anwoir says the email address and telephone number on the vote were also different to that recorded on the roll for Lot 31104.
• [30] Mr Ellingham made a submission, in which he states that his legal name is 'Richard Bremner Ellingham' but that he has always been known by his middle name 'Bremner'. Mr Ellingham says on 25 November 2024, he submitted a vote against Motion 10. He says his vote was accepted and he received an email from 'Nicole Anwoir<noreply@jotform.com' confirming his vote's acceptance. However, he was later advised by the returning officer that there was an irregularity with his vote, and it was ultimately ruled invalid.
• [31] The applicant says that if there was a problem with Mr Ellingham's eligibility, the system should have rejected his vote when it was first submitted, which would have given Mr Ellingham the opportunity to rectify the issue before the ballot closed on 16 December 2024. I note that had Mr Ellingham's vote been accepted, Motion 10 would not have passed.
• [32] I do not agree that the confirmation email Mr Ellingham received upon submission of his vote means that the vote was "accepted". The email simply states "[y]our submission has been received". This does not imply that the vote was valid. It also does not preclude the vote from being rejected if an issue concerning the voter's eligibility arises. The email is simply an acknowledgement that the vote cast has been received.
• [33] Section 101(2)(b)(i) requires the body corporate to operate a system for receiving electronic votes that is able to reject a vote cast by a person who is ineligible to vote on the motion. I am satisfied the system operated by the body corporate in this case meets that requirement. The system included the steps taken by the returning officer to access votes submitted electronically, to scrutinise them and ensure they were cast by persons who were eligible to vote on the motion. I do not accept the applicant's argument that the system should have communicated the rejection of Mr Ellingham's vote so that he had an opportunity to rectify it. If the vote had been submitted by paper and scrutinised by the returning officer at the meeting, there would also not have been the opportunity to 'have another go'.
• [34] The applicant also claims the body corporate's electronic voting system contravenes section 101(2)(b)(ii) which provides that the system must reject a vote cast by a person who has already cast a vote on the motion. He says the system allowed him to vote twice on Motion 10.

• [35] Ms Anwoir says that in cases of duplicate submission of votes, she retained the most recent vote based on the timestamp and IP address. The earlier vote was archived on the assumption that the voter changed their vote which is allowable before voting closes. The applicant accepts that the returning officer may have manually isolated duplicate votes but says the regulation requires the body corporate to operate a system that rejects votes from a person that has already voted in the first instance. By way of example, the applicant says the voting portal should be closed to a voter once they have exercised their vote so they cannot vote again, and in this way, no reliance is placed on the returning officer to discover the duplicate vote.
• [36] The purpose of section 101(2)(b)(ii) is to ensure each lot gets one vote on a motion. In this instance, the body corporate operated a system that was able to prevent the duplication of votes through the returning officer checking and verifying that only one vote is accepted per lot. There is no suggestion that any vote was counted more than once. Further, section 99(3) of the Accommodation Module provides that a voter may withdraw a vote and submit a replacement (either in hard copy or electronically) if the vote already cast can be readily identified and withdrawn. As the returning officer indicated, where 2 votes were cast, the first one was archived and the second one accepted given a vote can be withdrawn and resubmitted.
• [37] In summary, the applicant has failed to persuade me that the body corporate's system of receiving electronic votes contravenes the requirements of section 101(2)(b).

• [38] The applicant claims that the body corporate secretary failed to give instructions that a person must comply with any requirements under the Electronic Transactions (Queensland) Act 2001 (Electronic Transactions Act) about how a document must be signed or sent electronically. I agree with the committee that this is not what section 101(4)(b) of the Accommodation Module requires. Rather, the section puts the obligation on a person casting an electronic vote to comply with the Electronic Transactions Act.
• [39] The applicant also asserts that the system for receiving electronic votes contravened section 101(3) as it did not allow a voter who was present at the AGM to cast a vote electronically at the meeting as the online voting system closed at 4:30pm on 16 December 2024. The applicant's interpretation of section 101(3) is misconceived. The section does not require the body corporate's electronic voting system to enable a vote to be cast at the meeting; it simply states that the system may provide for such an option.
• [40] The applicant cites another "flaw" with the AGM being that the online voting system opened a day earlier than what was stated on the AGM notice. There is no suggestion that this somehow fundamentally disadvantaged voters such that the decisions made at the AGM, including Motion 10 should be invalidated.
• [41] The applicant makes a vague allegation that the operating system was changed during the voting period resulting in votes being subject to 2 different systems. However, the applicant does not explain what change of system occurred nor how the alleged change affected the process or outcome of the secret ballot. Given the unclear and unsubstantiated nature of this allegation, I do not consider it warrants any further investigation.

• [42] Section 102(1) of the Accommodation Module provides that the body corporate must appoint a returning officer for each general meeting at which a motion is to be decided by secret ballot. The returning officer has all or any of the following functions as decided by the body corporate and stated in the returning officer's instrument of appointment:[9]

1. deciding questions about eligibility to vote and voting entitlements;
2. receiving hard copy and electronic votes for secret ballots;
3. counting votes, or inspecting the counting of votes;
4. deciding whether a vote is valid.

• [43] The applicant alleges that no such instrument of appointment was provided before the commencement of the AGM. Again, the applicant argues that if the instrument of appointment was only provided after completion of the electronic voting, then it follows that the votes were being sent to a person other than the returning officer at the time. I have already dismissed this claim in the discussion above.
• [44] Further, the applicant questions the validity of the instrument of appointment, as it has not been signed by a representative of the body corporate and was supplied by the returning officer under a pro forma document on her company letterhead. The applicant claims that this breaches section 102(3) which requires the functions of the appointment to be decided by the body corporate, not by the returning officer. I see no merit to this argument. Regardless of who prepared the document, Ms Anwoir was appointed as the returning officer for the AGM to perform the functions as listed in the appointment. There is no legislative requirement that the instrument be in any particular form or that it be signed by the parties. Further, it has been consistently held that a minor procedural defect is insufficient to invalidate a body corporate decision unless it can be shown that there has been some material prejudice caused.[10]
• [45] The applicant has not satisfied me that there was any irregularity with the appointment of the returning officer in the circumstances that would warrant invalidating Motion 10.

• [46] The applicant claims that the body corporate failed to supply a list of persons who have the right to vote at the AGM.
• [47] At a general meeting, the secretary must have available for inspection by voters the following:[11]

b. a list of persons who have the right to vote at the meeting; and

• [48] The applicant says the returning officer was not provided with the eligible persons voting list at the AGM otherwise the returning officer would have seen that Mr Brem Ellingham was eligible to vote as nominee for Lot 31104. Alternatively, the applicant suggests that if the list did exist, it contained erroneous information or information in excess of what is mandated by the current nominee forms. The applicant alleges the returning officer used "superfluous" information to disqualify Mr Ellingham's vote.
• [49] The applicant has not presented any evidence to support his assertions. The body corporate submits that a correct voting list was available for inspection by voters at the AGM and that the returning officer used that to undertake her role. Further, I note the returning officer rejected the vote for Lot 31104 on the basis that the name of the voter, 'Richard Bellingham' did not match the name of the nominee, 'Brem Ellingham' on the roll. This is later confirmed when the returning officer checked the nominee form for Lot 31104 which named 2 nominees: 'Brem Ellingham' and 'Hamish Ellingham'. As such, even if the list of eligible persons had been made available at the meeting, the vote for Lot 31104 would still have been rejected given the discrepancy between the name of the voter and the corporate nominee identified on body corporate records.

• [50] The applicant submits that there were no lot owners or voting committee members present in the room to ensure fair scrutiny in the counting of the votes. Rather, he says the only persons present were those the legislation excludes from being a returning officer, that being the body corporate manager and a person associated with a service contractor or letting agent.
• [51] Section 99 of the Accommodation Module sets out how a secret ballot must be conducted. For each electronic vote received, the returning officer must ensure the vote can be viewed by a person present at the meeting.[12] The legislation does not restrict who that person may be. Specifically, there is no requirement that a person viewing the vote must not be a body corporate manager or associate of the caretaking service contractor.
• [52] The applicant has not established how the returning officer failed to comply with the legislative requirements when counting the votes, and in any case, there is no evidence that any failure impacted the outcome of the motion.

• [53] The applicant alleges that the returning officer had initially indicated she would reinstate the vote for Lot 31104 but that this was ultimately not done as the returning officer was under "considerable pressure" not to change her decision.
• [54] Mr Ellingham says that the returning officer had telephoned him following the AGM to advise there was an irregularity with his vote. He says upon him clarifying that he is one and the same person (despite the difference in name and contact details), the returning officer confirmed his vote was indeed a valid vote and would be recorded that way.
• [55] Ms Anwoir denies that she felt uncomfortable or pressured in her role during the AGM. She says that following the AGM, she upheld her decision to invalidate Mr Ellingham's vote because of the discrepancy between the name and contact details on the submitted vote to the name and details recorded on the roll and nominee form for Lot 31104.
• [56] Whether or not Ms Anwoir was pressured to stand by her original decision to invalidate Mr Ellingham's vote, the relevant issue is that the vote was correctly rejected in the circumstances. There is no evidence that in rejecting the vote for Lot 31104, Ms Anwoir did anything that contravenes her obligations under the legislation.

• [57] The applicant bears the onus of proof. He has not satisfied me there were any irregularities in the way the AGM or the voting on Motion 10 was conducted that would render the motion invalid.
• [58] The application is dismissed.

[4] McGill DCJ in Body Corporate for Palm Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300 at [50], as cited in Spinnaker Main Beach [2020] QBCCMCmr 237 at [41]

[5] The applicant refers to section 111 which is the equivalent provision under the Standard Module.

[6] Section 101(2)(c) of the Accommodation Module

[7] Section 101(2)(b)(i) of the Accommodation Module

[8] Section 101(2)(b)(ii) of the Accommodation Module

[9] Section 102(3) of the Accommodation Module

[10] See for example Carroll and Ors v Body Corporate for Palm Springs Residences CTS 29467 [2013] QCATA 21; Wei-Xin Chen v Body Corporate for Wishart Village CTS 19482 (Unreported, District Court of Queensland, Appeal 4080/2000, Bolton J, 29 May 2001)

[11] Section 103 of the Accommodation Module

[12] Section 99(6)(a) of the Accommodation Module