Conflicts of Interest to be Disclosed
20th September 2019
A committee member must disclose to the meeting any direct or indirect interest held in an issue being considered, or to be considered, by the committee, if their interest could conflict with the member acting in the committee’s best interests.
If the member is a voting member of the committee, the member is not entitled to vote at committee meetings on the issue.
Must Take Responsibility Seriously
A committee member’s position becomes vacant if they do not attend two consecutive committee meetings (without a leave-of-absence) or if they do not give a proxy for two consecutive meetings. Proxies can only be given to other voting members of the committee. Non-voting members (body corporate managers and building managers) are not able to hold valid proxies.
Formal Committee Meetings are much preferred
While a committee can make a decision outside of a formal committee meeting (under Section 35 Standard module – and Section 33 Accommodation module) that decision must be confirmed at the next committee meeting. We believe the use of “flying minutes” committee decisions as being poor governance except in an emergency when a decision must be made quickly. Full and frank discussions by all the democratically elected committee members at a meeting and then a formal vote on each item is by far the best method of managing a complex.
The use of telephone conferencing (or the even newer technology of video conferencing by email) may be a better alternative than a meeting by facsimile exchange – the most common form of ‘flying minute’ production – since at least during the telephone or video conversation, committee members have the opportunity to explore the issue with discussion.
A quorum is required for committee meetings. At least half of the voting committee members must be present or represented by proxy.
Minutes of Meeting Are Important
All lot owners are to receive “full and accurate” minutes of every committee meeting.
The minutes must contain:
- the date, time and place of the meeting
- the names of persons present and details of the capacity in which they attended the meeting (ie George White, building manager; Stephanie Jones nominee ABC Pty Ltd owner Lot 6)
- details of proxies tabled
- the words of each question decided
- the votes for and against each question decided
- details of correspondence, reports, notices or other documents tabled at the meeting
- the time the meeting closed
- details of the next scheduled meeting
- the secretary’s name and contact address
In most complexes, those operating under Standard module, owners may oppose committee decisions by giving a notice of opposition to the secretary (or body corporate manager if there is one) signed by one half of the lot owners within 7 days. Committees in Standard module should therefore delay implementation of any work until after the 7 day notice of opposition period has elapsed.
Owners may contest a decision of a committee by applying for a resolution of a dispute to the Commissioner’s Office (see Disputes elsewhere in this publication)
Formal Correspondence Deserves Respect
Owners who are having difficulty drawing the attention of their committee to their concerns should formally write down their requests and ask that the matters be considered by the committee.
This letter should be treated as official correspondence
This letter should be treated as official correspondence and the resulting decisions of the committee on this matter should appear in the official minutes of the committee meeting. If the matter has not been dealt with (ie that can be confirmed if it is not mentioned in the minutes, a copy of minutes are to be sent to all lot owners within 21 days of the meeting), it is reasonable to ask the committee why it was not mentioned in the minutes. If the matter is serious and the committee has not dealt with it, the lot owner can apply to the Commissioners Office for an adjudicator to order that the committee deal with the matter.
A general meeting is a meeting of the owners in a scheme. It is the formal time for owners to participate in the management of their body corporate.
Owners may participate by person at the meeting, or by filling in a voting paper which lists the motions for the meeting, or by giving another person a proxy to vote on their behalf at the meeting.
There are some important rules relating to proxies: Proxies are now limited in the Standard module to 1 per person or to 5 per cent of the total number of lots if the scheme is larger than 20 lots and, in the Accommodation module, to 1 for up to 20 lots and 10% of the total lot numbers if more than 20 lots) Body corporate managers cannot hold proxies. Proxies cannot be used for specific motions.
Annual General Meetings Must Be Held
The body corporate must hold an annual general meeting within 3 months after the end of each financial year of the scheme.
At the AGM owners consider the financial position and direction of the body corporate and elect the committee for the next year.
The agenda for an AGM must provide for
- The presentation of the statement of accounts for the previous financial year
- The adoption of administrative and sinking fund budgets for the next financial year
- The determination of contributions to be paid by lot owners for the next financial year
- A decision on whether the financial accounts should be audited the next financial year and
- A review of each insurance policy held by the body corporate
The agenda must also include motions proposed by the committee or submitted by lot owners. An owner submitting a motion for consideration at an AGM must ensure that the secretary receives the motion before the end of the financial year immediately preceding the meeting. See tips on writing motions elsewhere in this book.
Authority to Call a General Meeting
The secretary can call a General Meeting of the complex on the authority of a majority decision of the committee, or if more than 25% of lot owners ask the secretary to convene a meeting. The secretary can no longer call a meeting without authority.
A requested Extraordinary General Meeting (EGM) must be called within 14 days after the notice requesting it is given to the secretary (or, in the secretary’s absence, the chairperson). That meeting must be held within 6 weeks of receiving the request.
The agenda for a general meeting is prepared by the committee and is best done properly by majority decisions on each item to be included in the agenda. Lot owners are permitted to write their own motions for the agenda. If a motion is ruled out of order, the minutes of that meeting must include an explanation of why that motion was ruled out of order. Legal advice is often sought before such a ruling.
It is poor governance to leave it to the body corporate manager to prepare and send out agendas without the committee approving them first.
The BCCM Act does not give executive committee members (particularly chairpersons and/or secretaries, acting alone or together or in conjunction with the body corporate managers) authority to set agendas for general meetings.
The agenda must include
- The substance of the motions proposed by the committee
- The substance of motions submitted by other lot owners
- ·A motion to confirm the minutes of the previous general meeting
In addition, annual general meetings have to consider
- accounts from the previous financial year;
- administrative and sinking fund budgets for the next year;
- levy contributions for the next financial year;
- whether accounts are to be audited or not the next year;
- the adequacy or inadequacy of each insurance policy that the body corporate might have.
Lot owners can vote on motions at general meetings in person, by voting paper or they may appoint a person to be their proxy at the meeting and to vote on their behalf.
Notices of general meetings should contain
- the agenda
- Voting papers and a
- ·proxy form
Normally if there are lot owners that are companies or trusts, a simple form appointing a company nominee is also included.
As the name suggests, the voting papers contain details of each motion that is on the agenda for the meeting. Lot owners who cannot come to the meeting have the opportunity to participate by lodging a voting paper to the secretary (or body corporate manager) before the meeting.
We recommend that owners attend meetings and listen to the discussions before voting, however participating by filling in a voting paper is designed for people who are not able to attend a particular meeting.
The voting paper lists each motion proposed by a lot owner (or alternatively the committee), plus any explanatory material, plus a copy of relevant quotes for work to be done; it tells voters who has proposed the motion; and what type of resolution it is (explained below) and gives voters three alternatives: Yes No Abstain
Motion with Alternatives.
Where there are two or more alternative suppliers for a motion (eg when the matter is above committee limit spending), there is now a Motion with Alternatives. Voters are asked to vote Yes, No or Abstain to the substance of the motion and then if they vote Yes then to vote for one of the alternative quotes to do that work. The motion with alternatives must be accompanied by explanatory material including quotes and perhaps some background briefing or recommendations from the person proposing the motion.
Types of resolutions:
There are several types of resolutions to be used at general meetings
Most smaller decisions at a body corporate general meeting are normal or ordinary resolutions. If more people vote for them than vote against the motions, they are carried.
The handout on general meetings from the Commissioners Office (details at the end of this section) gives these examples of ordinary resolutions:
- The adoption of administrative and sinking fund budgets
- ·Fixing the annual body corporate contributions
Special resolutions are passed only if
(a) at least two thirds of the votes cast are in favour of the motion
(b) the number of votes counted against the motion are not more than 25% of the number of lots in the scheme; and
(c) the total of the contribution schedule lot entitlements for votescounted against the motion is not more than 25% of the total of the contribution schedule lot entitlements for all lots included in the scheme
Examples of special resolutions include:
- Authorisation for an individual owner to make an improvement to common property
- The consent to record a new Community Management Statement (CMS) if the only difference in the new statement is either in ordinary by-laws (other than exclusive use by-laws) or a change in regulation module
Resolution without dissent
As its name suggests, Resolution without dissent is when a motion is passed only if there are no votes against the motion. Examples of resolutions without dissent include:
- A proposal to sell or dispose of part of common property
- The consent to record a new CMS to change a lot entitlement schedule.
There is also a Majority resolution used in a specific motion as part of a process to require resident managers to move on and sell their investment in the building. For the majority resolution to be successful, more than 50% of all lot owners must vote for the motion. Legal advice is warranted before anyone attempts this move-on process.
Source Information; ‘General meetings’ handout email@example.com phone 1800 060 119
Giving people a proxy for a general meeting is an important act of trust and should not be done lightly.
People sometimes seek proxies to get their own self-interested motions through at meetings. The interests of proxy givers may not be the same as the interests of the people that they have given their votes to.
A body corporate can decide not to accept proxies at future meetings by special resolution at a general meeting.
Procedural Matters for General Meetings
The secretary (through the services of a body corporate manager, if there is one) must make available for inspection by voters at a general meeting
- The body corporate roll
- A list of people who have the right to vote at the meeting (in practice that means removing the names of lot owners who are not financial from the roll, and adding people who are authorised nominees for lot owners and whether there are other representatives of lot owners entitled to vote, including authorised family members or powers of attorney) and
- All proxy forms and voting papers
A motion may be amended by the majority vote of persons present who have a right to vote at the meeting. A person who has lodged a voting paper (and who is not present in person or by proxy) is taken to have voted against the amendment.
An amendment cannot change the subject matter of the motion. General meetings of owners are held to decide major matters to do with the management or the maintenance of the complex. All lot owners have the right to be consulted before such decisions are taken. Owners using voting papers would not be consulted if new motions were introduced and decided upon at the meeting.
Much of the information for this section has been taken from the handout “General Meetings” issued by the Commissioners Office. It is available from Phone 1800 060 119 or website www.justice.qld.gov.au
Duties of Chairperson
The chairperson has no authority outside a committee or general meeting, unless the body corporate committee has expressly authorised the chairperson to undertake a specific task.
The chairperson chairs meetings and, if there is a body corporate manager for the complex, that chairperson can ask for help and advice about these procedures and duties from the body corporate manager before, during and after meetings.
Chairpersons of self-managed schemes should learn more about these duties by consulting the Act and Regulations. Many meeting chairpersons have a copy of the new Layperson’s Guide to help them at meetings.
At General Meetings the chairperson chairs the meeting
- Accepts committee nominations (at the first AGM)
- Chairs general meetings
- Knows who can vote(who is not financial, who does not own a unit etc)
- Puts proxies before the meetings for admittance
- Rules motions out of order and gives detailed reasons to be written in the minutes
- Gives reasons for the rulings
- Accepts procedural motions and motions to correct minutes
- Declares whether or not a quorum is present
- Adjourns meetings for a lack of quorum
- At an adjourned meeting he/she may constitute a quorum alone
- Acts as the subsidiary scheme representative if none has been appointed by the subsidiary scheme
- Accepts voting papers not later than the start of the meeting
- Decides whether a ballot should be taken to ensure that there is an accurate count of votes cast at a general meeting
- Submits to general meeting only business set out in the agenda and on the voting papers
- Accepts amendments to motions
- Accepts motions to change the insurance arrangements
- Works with an independent returning officer who conducts a secret ballot on a motion if the committee decides that a motion be decided that way or if the Act requires a secret ballot.
- Understands types of resolutions required (there are different types of resolutions including Resolutions without dissent, Special Resolutions, Ordinary Resolutions and a Majority Resolution.
- Declares the result of voting at general meeting
- When declaring the results of voting, states the total votes for, the total votes against and the number abstaining
- Knows how to conduct a poll (for more information see the new Layperson’s Guide )
- Ensures that the committee election procedure is followed (see The New Layperson’s Guide for more details)
At Committee Meetings, the Chairperson:
- Acts as an executive member of the committee
- Calls committee meeting in the absence of a secretary
- When calling a requested committee meeting, acknowledges receipt of the request for a meeting
- Ensures that at least one committee meeting is held each year to prepare the agenda for the annual general meeting
- Ensures that restricted matters are not dealt with at committee meetings and that any remuneration of committee members is dealt with correctly
- Understands the limits that apply to committee meetings
- Chairs all meetings
- May appoint another person as proxy
- Understands the use of proxies
- Declares whether or not a quorum is present
- Only proceeds to a vote if a quorum has been reached
- Submits to meetings agenda items
- Accepts other items of business raised at the meeting
- Deals with conflicts of interest
Other duties of chairperson:
- Witnesses and signs documents that have been properly agreed to previously by the body corporate when the seal is applied
Is properly informed regarding agreements with body corporate managers, service contractors and letting agents