Our caretaking service contractor has sent out a letter to all owners asking them to vote for certain committee candidates and to vote to extend the caretaking service contract. Is this permissible under the Act?
While the Body Corporate and Community Management Act 1997 and its associated regulations remain silent in regards to lobbying, it sets out the procedures required for calling and conducting general meetings to support owners making an informed, valid vote.
We have dealt with a small number of dispute resolution applications where it was claimed lobbying had influenced the vote. In each case, the adjudicator either could not find or was not presented with any evidence to suggest that any lobbying which might have been done to prevent a reasonable person making an informed, valid vote. In Macarthur Chambers Residences  QBCCMCmr 252 at paragraphs 26 – 31, the adjudicator dealt with this issue and stated:
- The applicants state that the caretaker sends emails to owners who have their properties in the hotel pool, managed by her, instructing them how to vote and asking them to support her quest to insert an option to extend or renew the caretaking and letting agreement for a further five years and to elect certain persons to the committee. In addition to sending emails, the caretaker made a follow up phone call, again putting pressure on owners to vote as per her demands. In doing so, she used undue pressure – close to 75% of the properties are in the hotel pool. If an owner does not agree with the caretaker’s demands, the income they are receiving may be affected. The owners may have chosen to vote as per the caretaker’s instructions for fear of losing money. In the applicants’ view, the caretaker’s actions are akin to placing duress on owners. The majority of owners who have their properties under the caretaker’s management voted as per her demands.
- The applicants argue that, in lobbying, the caretaker used for improper purposes, personal information she had access to, due to the nature of the letting agreement, such as emails and phone numbers. This information is not available in the roll for all owners. She unfairly benefited from the information unavailable to other owners who may have had interest in lobbying regarding Motion 12.
- The committee includes in its submission, with the caretaker’s permission, the email sent by Dianne Papendorf to lot owners dated 4 August 2014. The committee points out that it is lacking in demands, undue pressure, duress etc. The committee concludes that they are completely unaware of any evidence that supports the applicants’ allegations, or of any legislative provision that prohibits lobbying. The committee also points out that Greg Kern lobbied lot owners in writing and by phone, with some of the phone calls being made by his secretary. They provide an example of a letter dated 6 August 2014. The submission by the owner of lot 503 states she did not receive any phone calls from Dianne asking for support to vote for anyone at the AGM. She states that “the only requested (more like demanded) support was from Karen Kern for herself and for Julie Stanton to attain the positions which they had nominated for. Julie Stanton has obtained my addresses from some source to send out her dreadful allegations against everyone who stands in her way.”
- Campaigning or lobbying is not specifically regulated by the Act or the Regulation Modules. Even so, this issue has been considered in the adjudication of previous dispute resolution applications. In Ipomoea Court, the adjudicator stated “Each lot owner has 21 days’ notice of the motions on the agenda. If he or she wishes to find out more about a motion, he or she may contact the proponent of the motion, or the committee. Lot owners may also canvass others to vote for “their” motion, or to vote in a particular way, and lobby before the meeting. In St. Tropez, the adjudicator stated “if an owner disputes decisions made by the Committee majority, they should lobby owners to vote against the motions…It is then for owners to decide which approach they prefer. In Liberty, the adjudicator stated there is nothing to prevent lobbying for the election of certain persons to the committee.
- A lot owner lobbying for votes in the election of a person or persons to committee positions and or voting for or against particular motions is not contrary to the legislation.
- I consider the applicants’ assertions in relation to the caretaker placing “undue pressure” on owners in the hotel pool to vote a certain way to be without substance. Further, they are not supported by a single owner submission.”
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 QBCCMCmr 49
  QBCCMCmr 445
  QBCCMCmr 164
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.