Owners’ submissions to meeting agendas
The recent adjudicator’s decision in Surfers Beachside [2013] QBCCMCmr 121 dealt with the provisions of the Body Corporate and Community Management (Accommodation Module) Regulation 2008 regarding submitting motions for consideration at a general meeting of a body corporate.
In Surfers Beachside, an owner submitted five motions to be included in the agenda for the scheme’s annual general meeting. Each of the five motions commenced with the words, “That the meeting resolves to note that…”. The content of the motions collectively comprised 10 typed pages setting out perceived failures in the administration of the body corporate and included the committee’s responses to 18 questions put to it by the owner. It appeared the owner wanted the information to be read and considered by owners before the election of committee members. The owner believed that the motions were required to be included on the agenda for the AGM.
Section 67 of the Accommodation Module provides owners with the right to submit motions for consideration at general meetings. A motion is defined as a formal proposal by a member that the meeting should resolve in certain terms (Joske’s Law and Procedure at Meetings in Australia, Magner, Eilis S, Lawbook Co – 2007). Any motion submitted by an owner must be included on the next general meeting agenda on which it is practicable to include the motion. Under section 71 of the Accommodation Module, the submitter of a motion is able to give the secretary an explanatory note about the motion, provided the note is not longer than 300 words.
The adjudicator did not consider that the ‘motions’ submitted by the owner were incorrectly excluded from the agenda of the AGM for the following reasons.
First, the adjudicator did not consider that the items were in fact ‘motions’. In her view, each of the ‘motions’ was not a formal proposal capable of resolution in certain terms.
Secondly, while section 67 allows owners to submit motions to general meetings, in the adjudicator’s view, the inclusion of section 71(1)(a) is clearly designed to limit the amount of material owners can submit in support, or
explanation, of their motions.
The adjudicator considered that the ‘motions’ submitted by the owner could have more accurately and succinctly been worded in the following terms: “That the meeting note the unsatisfactory performance of the current committee/body corporate manager etc” and the material in support of that statement could have been compiled in an explanatory note, limited in length to no more than 300 words.
While a motion worded in that or similar fashion would have been required to be included in the voting papers, with the explanatory note, the adjudicator did not think it would be unreasonable for a chairperson to rule such a motion out of order on the basis that it is arguably unenforceable because there is no action the body corporate can take as a result of voting on the motion. If such a motion was passed, it could not be enforced.
The owner also argued that the ‘motions’ he submitted should have been included in the agenda for a committee meeting.
A lot owner may submit a request or motion in writing for consideration by the committee, although there is no specific legislative right to do so. There is also no legislative obligation on the committee to include such an item on the agenda for a committee meeting, although the committee is required to act reasonably (section 100(5) act).
In Surfers Beachside, the adjudicator did not consider it was unreasonable for the committee not to include the owner’s ‘motions’ on an agenda for a committee meeting. As noted above the ‘motions’ were essentially the owner detailing at length personal criticism of the administration of the body corporate. There was no formal proposal that could be resolved in certain terms.
The adjudicator took the view that the owner’s chief concern was to communicate his comments about, and views of, the administration of the body corporate to all owners in an effort to influence the way they cast their vote in the election of committee members. There is nothing wrong with this. However, the means attempted by the owner to achieve this were mischievous. He tried to rely on his legislative right to submit motions to be considered by all owners in general meeting and the body corporate’s obligation to include those motions on the agenda of the next general meeting at which it was practicable to do so; to in essence, distribute his own propaganda at the expense of the body corporate.
After this failed, he attempted to achieve the same result by insisting that the committee include his ‘motions’ in an agenda for a committee meeting, which was required to be distributed to all owners (sections 45, 47 Accommodation Module). However, the committee was not legally obliged to include the owner’s ‘motions’ on an agenda for a committee meeting.
The adjudicator noted that owners have the ability to distribute propaganda themselves, at their own expense, by writing to all owners, whose addresses for service can be obtained by inspecting the body corporate roll. Subject to any obligations imposed by the general law or by the codes of conduct that are applicable to some parties, there is no specific regulation of general ‘propaganda’ or ‘electioneering’ material that is sent separately by an interested individual at that individual’s own cost. In contrast, the legislation places tight restrictions on what material may accompany the voting papers that the body corporate sends to owners.
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