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Do you inadvertently accept unlawful voting papers?

19 Aug 2013

This newsletter is based on a piece of decided litigation from the year 2000, but as we bounce around the body corporate management industry, it seems that what was a very hot topic at the time needs refreshing in the minds of some of the newer industry participants.

While the legislation changed a fraction in 2003 from what this case was decided on, the issue remains the same.  Both Standard and Accommodation Modules provide that:

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:

  1. personally;
  2. by proxy;
  3. by casting a written vote;…

A voter casts a written vote by:

  1. completing the voting paper as required by the accompanying instructions; and
  2. giving the voting paper to the secretary (by hand, by post or by facsimile) before the start of the meeting.

This section was litigated in detail and it all hinged on what ‘personally’ meant.  At Surfers Waters the resident manager had put up a motion to vary their management rights agreements.  They collected 15 voting papers from owners and took them to the secretary of the body corporate for the meeting.

The District Court (on appeal) held that ‘personally’ means delivered by the voter personally – not through the hands of a third party – no matter what their intentions.

The use of the words ‘personally’ and ‘by hand’ bolded above retain that same principal.  A vote should not be submitted by anyone other than the voter.

What this means is that body corporate managers need to be vigilant in receiving voting papers which can be delivered in any number of ways.  As examples:

  • Days before the meeting an owner walks into the body corporate manager's office with four voting papers.  Unless they are the owner of all four lots, three of those voting papers are invalid.
  • If a staff member accepts these they should ask the question of the owner.  If there was a ‘ballot box’ or similar which was unattended, then it is impossible to regulate who sent the ballot papers in  – and it becomes not dissimilar to Australia Post.
  • At the meeting itself, a person should only deliver their own voting papers.  If they did the polite thing and one owner collected them and walked a few of them up to the front – and those voters were at the meeting - then we don’t think there would be an issue.  If the voters were not present then there would be.

When some motions can be decided by a single vote one way or the other it can become very important to ensure that all votes cast are lawfully cast.

If you need help interpreting whether a vote you have received is valid please let us know.

Contact

Frank Higginson, Director

Jason Carlson, Senior Associate

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