Is it permissible to conduct voting on motions and the election of the strata committee in NSW through a Zoom (video call) meeting, using verbal "yes" or "no" responses? If so, should the vote tallies provided by each lot owner be documented as part of the plan's records?
Process for voting on the election of a strata committee during a meeting held by video conference
The procedure for the election of a strata committee is set out step-by-step in clause 9 of the Strata Schemes Management Regulations 2016 (NSW) (‘the Regulations’):
- At a meeting of an owners corporation at which the strata committee is to be elected, the chairperson must—
- announce the names of the candidates already nominated in writing for election to the strata committee, and
- call for any oral nominations of candidates eligible for election to the strata committee.
- A written or oral nomination made for the purposes of the election is ineffective if it is made by a person other than the nominee unless it is supported by the consent of the nominee given—
- in writing, if the nominee is not present at the meeting, or
- orally, if the nominee is present at the meeting.
- After the chairperson declares that nominations have closed, the owners corporation is to decide, in accordance with the Act, the number of members of the strata committee.
- If the number of candidates—
- is the same as, or fewer than, the number of members of the strata committee decided on—those candidates are to be declared by the chairperson to be, and are taken to have been, elected as the strata committee, or
- is greater than the number so decided on—a ballot is to be held.
All of these steps can be achieved during a meeting held via video conference, by way of verbal, visual (show of hands) or written (e.g. in a chat function) communication.
If a ballot is required, we look to clause 10 of the Regulations for the procedure to follow:
- This clause applies to the election of a strata committee for a strata scheme comprising more than 2 lots.
- If a ballot for membership of the strata committee of an owners corporation is required, the person presiding at the meeting of the owners corporation must—
- announce to the meeting the name of each candidate, and
- provide each person present and entitled to vote at the meeting with a blank ballot paper for each vote the person is entitled to cast.
- For a vote to be valid, a ballot paper must be signed by the voter and completed by the voter’s writing on it—
- the names of the candidates (without repeating a name) for whom the voter desires to vote, the number of names written being no more than the number determined by the owners corporation as the number of members of the strata committee, and
- the capacity in which the voter is exercising a right to vote, whether—
- as owner, first mortgagee or covenant chargee of a lot (identifying the lot), or
- as a company nominee, or
- by proxy, and
- if the vote is being cast by proxy—the name and capacity of the person who gave the proxy.
This can be tricky to navigate during a meeting by video conference in terms of providing and receiving ballot papers, for example:
- In clause 10(2), the attendees must be given a ballot paper – this could be emailed to them, or the attendees could be given a link to a website with a form to complete.
- In clause 10(3), where the attendees must sign the ballot paper – the form would need to have the ability for the person to sign it.
Without these parts being satisfied, the ballot papers could arguably be deemed invalid.
This can be easily overcome with a proper digital ballot paper designed to meet the requirements of the law.