Introduction

The person chairing a general meeting must declare the result of voting on motions and elections at the general meeting. That includes the number of votes cast for and against motions and on candidates for committee positions.

What happens if there was an error, mistake or oversight in the voting process that is discovered after the result has been declared and the meeting has been closed?

Most of the time, an error won’t change the result because most general meetings are uncontroversial and the few who attend them simply go through the motions of recording inevitable results.

But if an error could change a result, it is usually a sign of a closely contested election or vote on a controversial motion. Conspiracies of vote-tampering will ripen in that environment.

There is no legislated process for dealing with this scenario, so what a committee does (or doesn’t) do will come under intense scrutiny.

What has happened in other cases

The BCCM regulation modules have been criticised for being as over-prescriptive.[1] But this is one of those rare issues where Queensland’s strata legislation is silent and adjudicators have had to navigate and resolve this problem on a case-by-case basis.

In Bonapartes Serviced Apartments [2007] QBCCMCmr 58, an error was made in the counting of votes cast on a motion. Initially, the result was declared as 8 votes for, and 7 votes against, on two motions. After the meeting, it was discovered at only one vote was recorded for a person who owned two lots. They voted against both motions, so both motions would have failed to pass if the error was not made.

The adjudicator confirmed that “… there is nothing in the legislation to provide the answer to what to do if the vote is recorded wrongly, typed wrongly in the minutes, or a cast vote is overlooked. Nor are there any remedies given in the legislation for any error.” The adjudicator found it would be inequitable let the error stand and made orders correcting the mistake.

In Peninsula [2006] QBCCMCmr 399, it was discovered after a general meeting that a person’s vote should not have been taken at the meeting because they were ineligible to vote. The committee made corrections and passed a committee resolution confirming the result being different to what had been declared at the general meeting. An interim order application challenging what the committee had done was dismissed.

In Noosa Lakes Resort [2014] QBCCMCmr 257, the result on a motion was declared at the general meeting as 27 votes for and 27 votes against. However, the minutes recorded that the motion had passed. The body corporate manager gave evidence that there was a miscount during the meeting. The adjudicator found at [16]:

“The legislation does not contain a provision specifically relevant to this issue. The common law position appears to be that the chairperson’s “declaration of the result is conclusive evidence of the counting of the votes, but it does not provide evidence of, nor overcome, any irregularity or informality in the meeting itself: Re Fraser & Co Ltd (1896) 22 VLR 388”. In my view, an arithmetic error of the nature outlined by the committee could not be ignored and could be remedied internally or under the Act’s dispute resolution provisions. While the applicant disputes the way the error was corrected, there is nothing to suggest the minuted result does not reflect the votes that were accepted on Motion 11.”

A similar issue arose in Ocean Resort Village (No 1) [2020] QBCCMCmr 99. A returning officer made errors in the count on a secret motion. The motion was declared lost. The returning officer then realised that she had incorrectly counted a yes vote as a no vote and had miscounted the overall tally. The minutes then recorded the result in accordance with the returning officer’s revised and corrected count. The adjudicator refused to make any order interfering with the corrected result and made these comments:

 “[59] There is no evidence of skulduggery, therefore the correct vote must be that which was determined by the RO. Even though the result was declared by the chair, given it was found to be in error, why should the outcome not be revised? What would the applicant and supporting lot owners suggest should be the alternative? That the vote remain as declared at the meeting and the minutes have a report attached from the RO showing a different result, and that the minutes reflect an inaccurate reported outcome? Then what would they suggest to deal with the situation, an application to this office, or yet another meeting?

[60] It seems to me, the will of the meeting was reflected in the vote and there is no credible, in fact no evidence, that the outcome was fraudulent and ‘interfered’ with in any way. The reputations of the BCM and the RO have been called into question without supporting evidence. I agree with the respondent that this is mere conjecture and inappropriate to be advanced without evidence to support it.”

The message to take out of these decisions is that adjudicators are comfortable with committees taking prompt action to correct any mistakes and will defend those corrections in the absence of any evidence of bad faith or malintent behind what the committee has done.

The ‘why’ to how the committee deals with the discovery is just as important as ‘what’ it does.

What we recommend

A strata manager who discovers an error, mistake or oversight should, as soon as they can, inform the committee of the discovery and what, if any, effect it may have on the results of a general meeting.

What the committee should do from there depends on the circumstances and should be assessed in accordance with these principles:

• committee members have a duty to act in the best interests of the body corporate, unless unlawful to do so;
• committee members must act honestly and fairly in performing their duties;
• a committee is to put into effect the lawful decisions of the body corporate.[2]
  
  

So, when an error, mistake or oversight is discovered that could change the result, what was the lawful decision of the body corporate? It may not be whatever was declared by the person chairing the general meeting.

It is not quite as simple as forming the view that an error on a single vote would have changed the result that was declared, so a correction is in order.

Gazing into a crystal ball and analysing past events with the benefit of hindsight are both speculative activities.

Turning back to the Noosa Lakes Resort decision mentioned above, that dispute also involved concerns about how voters were lobbied during the general meeting:

“[12] The first issue relates to advice given at the AGM that votes could be changed. The applicant argues committee members: pressured owners to vote for Motion 11; pressured owners to change their votes after the motion failed; and did not declare the result for no reason other than to lobby owners to change their votes. The committee submits: the Act does not limit the changing of a vote before the declaration of the result of the vote; opportunity was merely given to change votes; and it would have been unreasonable to deny owners this opportunity.

[13] There is no prohibition on a motion being debated at a general meeting. The legislation contemplates a written vote being withdrawn before the result of a motion is declared and a vote being made at a general meeting by show of hands (ss 84(4) and 85(2), Accommodation Module). It is conceivable that a voter present at a general meeting may decide to withdraw the person’s written vote on a motion and to vote by show of hands. There may be a question if, for example, there was undue pressure or threats made to induce a person to change a vote. There is nothing to suggest anything of this nature is a relevant consideration in this dispute even though two voters apparently changed the way they voted at the AGM.”

If an error on a single vote was immediately recognised and corrected from the floor of a general meeting, who is to say that such a discovery would not have triggered other events that could influence the ultimate outcome?

Often, the appropriate course to take would be to simply call another general meeting to have the motion reconsidered. That would take the personal interests and positions of committee members out of the equation and put the decision back in the hands of owners.

But there is no formulaic solution. Each case has its own intricacies that need to be worked through. Committees should share the burden of having to make a quick decision under the weight of competing factions and interests by seeking early advice.

Human error occurs across many facets of life, the importance is having a system to identify when an error has occurred and further, a process to manage the error. Committees and bodies corporate must act reasonably in any and all decisions it makes and while an error in voting may inevitably make its way to the Commissioners Office a committee should be in a position to articulate the steps it has taken to right the wrong. Early intervention and obtaining professional advice will be key to navigating a reasonable solution.

Article Contributed by Jason Carlson, Partner, Chambers Russell Lawyers

About the author

Jason Carlson is a partner of Chambers Russell Lawyers.

He has practiced exclusively in strata law since 2009 with a focus on dispute resolution, strategic advisory work and management rights disputes. He has led bodies corporate through some of the most significant pieces of strata litigation in Queensland over the last 15 years.

He was a director of Strata Community Association (Qld) from 2016 – 2022 and a director of Strata Community Association Australasia from 2022 – 2024. In 2022 he received the SCA (Qld) President’s Award in recognition of his significant contributions to, and leadership within, Queensland’s strata sector.

Jason Carlson and Jessica Cannon recently joined Chambers Russell Lawyers, partnering with James Nickless, to expand the firm’s presence in Queensland and nationwide.

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[1] His Honour Judge McGill in Body Corporate for Palm Springs Residences v. J Patterson Holdings Pty Ltd [2008] QDC 300, footnote [10].

[2] Section 101(2), BCCM Act.

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