Q&As from General meeting under the new Standard Module
How is the decision within group of same issue motion made when a poll vote is requested?
The provision regarding poll voting is contained in the BCCM Act and has not changed. A poll vote can be requested on a motion that requires an ordinary resolution. Therefore a poll can be called for any original motion that requires an ordinary resolution to pass.
Is there a definition of electronic voting in the new regulations?
Electronic voting is when the body corporate by ordinary resolution has approved the use of an electronic voting system. The electronic voting system must meet certain requirements under the regulation. More information about electronic voting can be found on our website.
Only 1 proxy per person but as many power of attorneys as you can have?
The change relating to power of attorney under the new Standard Module is that a power of attorney can only represent 1 lot owner unless the owner of each lot is the same person; or for each lot the representative is a family member of the owner of the lot; or the power of attorney is given under section 211 or 219 of the Act. This is different to holding a proxy. Under the expiring and new Standard Module, if a scheme consists of 20 or more lots a person must not hold proxies greater in number than 5% of the lots. If there are fewer than 20 lots, a person must not hold more than 1 proxy. The Accommodation Module has changed to bring it in line with the Standard Module in relation to the number of proxies that can be held by one person.
How many people are allowed to attend an AGM now in person?
There have been no changes in the regulations about how many people can attend an AGM in person. Covid-19 regulations may determine how many people can gather for a meeting. Refer to the Queensland Health public health directives for more information.
Is there a requirement to call for motions for a first AGM within a set period of time prior to the AGM?
No, the new Standard Module provides that if an owner has submitted a motion and it is practicable to include it, it must be on the agenda of the first AGM.
If you want to have video conference at the next AGM, do you need pass that general motion before the AGM or could it be at that AGM?
The decision by ordinary resolution to allow members of the body corporate to attend the AGM personally via electronic means (e.g. by teleconference or videoconference) would need to happen prior to the AGM at an EGM or the previous AGM.
Did you say the electronic voting system must reject votes if the person is unfinancial?
The electronic voting system must reject votes from members who are not eligible to vote. A person is not eligible to vote if they owe a body corporate debt at the time of the meeting.
Will a motion with alternatives with no more than two options/alternatives remain as it is currently under the Standard Module?
No, a motion with alternatives has been replaced with ‘group of same-issue motions’. If 2 or more motions are submitted about the same issue they are put on the agenda under the title ‘group of same-issue motions’.
Can you withdraw or change a vote on a secret motion ballot by electronic voting?
A voter may withdraw a vote already cast for the ballot and submit a replacement electronic vote if the vote already cast can be readily identified and withdrawn.
Does a power of attorney have to prove they are family member?
A voter has to demonstrate they have the authority to vote by providing the information for the body corporate roll. The power of attorney gives the secretary a copy of the instrument under which the person derives the representative capacity or otherwise satisfies the secretary of the person’s representative capacity. The secretary must make a copy of the roll available at each AGM. There is no specific provision about the proof of the person’s capacity as family member.
Electronic votes – do they go to the secretary or can they be sent C/- the body corporate manager?
Electronic votes are given to the secretary so that the secretary receives the votes before the general meeting. The new Standard Module provides that a document or information that would usually go to the secretary can be given to the body corporate manager if they are authorised by the body corporate to exercise some or all of the powers of the secretary
There are now platforms available to allow owners to cast a vote electronically. Is this different to someone being on speaker phone, Zoom or Skype who seeks to verbally vote?
Yes, there are different ways an owner can vote. The body corporate can decide by ordinary resolution to use an electronic voting system. Or, a person can attend a meeting ‘in person’ if they attend electronically (e.g. Zoom or Skype), if approved by the body corporate by ordinary resolution. Also, an owner can vote by written voting paper. Refer to the meaning of written vote in the BCCM Act.
So the building manager cannot have multiple powers of attorney?
No they cannot, a power of attorney can only represent 1 lot owner unless the owner of each lot is the same person; or for each lot the representative is a family member of the owner of the lot; or the power of attorney is given under section 211 or 219 of the Act..
Power of attorney and family member - does this allow defacto partners?
The BCCM Act defines family as an individual’s spouse. You may wish to refer to the definition of spouse contained in the Acts Interpretation Act 1954.
Can the body corporate restrict people from general meetings?
No, there is no specific provision for the body corporate to restrict a person from attending a general meeting. It is implied that the invitation to attend a general meeting is sent to owners.
Is there a time frame for when the electronic vote has to be cast?
The new Standard Module provides that the vote is received before the general meeting or if the voting system allows, at the general meeting.
If a person seeks to attend a general meeting with a power of attorney in hand, is that person eligible to vote even though the power of attorney is not noted on the body corporate roll?
A person is a representative of a lot and able to vote for the owner if the person is listed on the body corporate roll. The person gives the secretary a copy of the instrument under which the person derives the representative capacity or otherwise satisfies the secretary of the person’s representative capacity. If they are not on the roll, they may be rejected as a voter.
Can a family member hold one power of attorney for his daughter then hold another power of attorney for another lot owner who is not related.
A person may only act as the owner’s representative in relation to more than 1 lot if the owner of each lot is the same person; or for each lot the representative is a family member of the owner of the lot; or the power of attorney is given under section 211 or 219 of the Act.
Does an email addresses now need to be included on the body corporate roll?
No, a person can choose if they want to provide an email address to the body corporate as part of their address for service. If they do provide an email address they are taken to have consent to receiving information from the body corporate in this way.
Must the disclosure of monetary benefits (i.e. insurance commissions paid to a body corporate manager) be included in the agenda of the AGM notice, or does writing to the committee satisfy informing the body corporate?
The main provisions regarding the disclosure of benefits have not changed. The commission, payment or other benefit must be disclosed by written notice to the body corporate before the body corporate makes its decision. Under the new Standard Module the change is that if the benefit is monetary, the value of the benefit must be disclosed.
Can owners provide an email address for the delivery of notices and request that the email be kept private from searches etc?
The body corporate roll is a document that can be accessed by an interested person under section 205 of the BCCM Act. The Privacy Act states that where another Act permits the release of information, it can be released. Perhaps create a generic email address for body corporate if you do not want to disclose a personal email address.
Can a defect report be called for at any time, in particular, if the property is older?
A defect assessment report is relevant for buildings under 6 years old as the body corporate may be able to pursue the defects with the Queensland Building and Construction Commission. The body corporate could still obtain a report to assess the building, but then the rectification of issues may be considered maintenance for the body corporate to fix.
Who owns the body corporate roll, the body corporate or the body corporate management company?
The roll belongs to the body corporate (the owners in the scheme). The body corporate manager is often engaged to keep the roll on the body corporates behalf.
If an elderly person has an email address but is unable (due to lack of skills) to access complex documents, can they still elect to receive written documents.
There is no requirement to provide an email address. Where there is no email address the documents will be sent to the owner at their address for service (an Australian postal address). An owner can also enter into an agreement with the body corporate about how they want to receive documents and information.
In regards to the building defect assessment report, does the new Standard Module require that the body corporate must also act to rectify any defects identified in the report? We have defects and issues of non-compliance relating back to 2014 that the committee continues to disregard regardless of having been requested as motions at a general meeting?
The change relates to putting forward a motion for the second AGM, not about rectifying defects. The body corporate must maintain common property, which could include an action with the Queensland Building and Construction Commission about a defect for a building. Otherwise you can submit motions to the body corporate for the body corporate to carry out maintenance to common property.
If the chairperson is in arrears can they chair a general meeting?
There in nothing in the legislation that prevents the chairperson from chairing the meeting if they owe a body corporate debt.
If there is more than one owner for a lot, can that lot provide multiple email addresses for the roll, i.e., one address per person?
If there are 2 or more co-owners for a lot, there must only be one address for service for the owners.
Can a body corporate manager refuse to acknowledge or use the address for service, e.g. refuse to send documents by email?
The new Standard Module provides the body corporate must update the roll, if a person provides an email address as their address for service, the documents should be sent by email, unless the owner has entered into an agreement about receiving the documents in another way.
If my building is still in warranty period, does the body corporate have to do a defect report before that warranty period expires?
The new Standard Module provides that a motion must be included on the agenda of the second AGM to obtain a defect assessment report (this would probably be in the second year). If the second AGM has already taken place you can still put forward a motion to obtain a defect assessment report.
I assume the building defect assessment report applies to all body corporates, and not just buildings under 6 years old?
The defect report relates to a new building, the motion to obtain the report is put on the notice of the second AGM. This does not mean that a body corporate older than 6 years can’t obtain a report.
What is the difference between proxy voter and power of attorney?
A person can be given a proxy to vote for a meeting or meetings, by completing a proxy form. This does not mean they are the representative of the lot. A person who is a power of attorney is the representative of a lot and appears on the body corporate roll. There are restrictions on the use of proxies unlike a power or attorney which has no restrictions on how it is used.
If there is a new build but it is already at year 3, must the body corporate vote to obtain the defect report?
The compulsion under the new regulation is that a motion regarding a defect assessment report must be included on the agenda for the 2nd AGM. If the 2nd AGM has already taken place the body corporate or an owner can still propose a motion to obtain a report however it is not compulsory under the regulation.
Do the new regulations come into power for the next meeting after 1 March 2021, or after the election period?
The new regulations commence 1 March 2021. However, for a meeting called but not held before 1 March 2021, the expiring Standard Module applies.
Is there a standard time frame in which a solicitor or conveyancer need to provide information relating to the change of lot owner due to sale or transfer?
Under both the expiring and new Standard Module, the owner is responsible for providing the information (however a solicitor or conveyancer may do it on their behalf). Under the new Standard Module the owner now has 1 month instead of 2 months to provide the information to the body corporate.