Category: Defamation risk from AGM 2022

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Defamation risk from AGM 2022

The opinion is that the protections of 111A of the BCCM Act 1997 to the body corporate and the committee of Somerset Gardens against any action for defamation would NOT be available in this case. This is due to multiple errors made by Ora Whaanga  (secretary) and the committee not acting reasonably.

Ora Whaanga  (secretary) and Lynne Smith (treasurer) and possibly Danelle Jones (owner lot 13), as the lot owners who submitted the motions published, could have an action against them for defamation.

The advise is that, 

  1. for the protection of the body corporate,  and the assets of the body corporate all actions be taken to find a resolution in the dispute between the body corporate and  Mr Wurth over the publication of motions 11-22 on the voting papers and explanatory schedule with the notice to the AGM on the 26th October 2022 and the minutes of the  AGM on the 26th October 2022.
  2. For the protection of individual committee members at the committee meeting of 24th August 2022 all actions be taken to find a resolution in the dispute between the body corporate and  Mr Wurth over the publication of motions 11-22 on the voting papers and explanatory schedule with the notice to the AGM on the 26th October 2022 and the minutes of the  AGM on the 26th October 2022.

History

The notice of the general meeting on the 26th October 2022 had with it, an agenda, voting papers and an explanatory schedule was published by Archers (BCM) Gold Coast and sent to all lot owners. Even though these documents were published by the body corporate manager, the publishing was done so on behalf of the body corporate organised by the committee.

The minutes of the general meeting on the 26th October 2022, were published by Archers (BCM) Gold Coast and were sent to lot owners.

Legislative requirements.

The Body Corporate Community Management Act of 1997 applies to these actions and the methodology of action are outlined in Body Corporate Community Management (accommodation module) Regulation 2022

The preparation of the agenda for each general meeting is directed in  section[1]  93(1) :

“The committee must prepare an agenda for each general meeting.”

The regulations are clear on how  a committee makes a decision.  A committee can only make a decision at a meeting, under section 57(1), 

“This section states how motions are decided at a meeting of the committee.”

or by way of vote outside of committee meeting (VOCM), that require steps to be done under section 60(1) that states:

“A motion may be considered by the committee even though the motion is not decided at a meeting of the committee called and conducted under this part”.

The requirements of section 60 are

  •  notice of the motion give to all committee members and 
  • at the same time, advice of the motion, given to lot owners and 
  • a motion voted on under this section must be confirmed at the next meeting of the committee held after the motion is voted on.

The agenda for the AGM, under section 83(2)(a)(iii), must include a motion submitted by a member of the body corporate, under section 76, and required that such motion to be included on the agenda. 

If a motion is submitted under section 76, before the 31st July, it would be an open motion at the AGM and section 78(1).  It gives the responsibly to the secretary to prepare the voting papers for such open motions. Section 80(1) requires a voting papers, to be accompanied by an explanatory schedule. Thus the secretary ahs responsibly to ensure the voting is accompanied by the  explanatory schedule The explanatory schedule, is to contain any explanatory note given to the secretary, as stated in section 80(1)(a):

“the submitter of a motion (under section 76) stated in the voting paper gives the secretary an explanatory note about the motion, and the note is not longer than 300 words”.

To clarity, section 80(2)(b), indicates:

“the explanatory note in the form given by the motion’s submitter”

Therefore, even though the secretary has responsibility for preparing the voting paper, that have the explanatory schedule with it, the committee has the overall direction to prepared the agenda, which the voting papers are part of.

The BCCM Act 1997 gives protection to the body corporate and the committee for required material for a general meeting under section 111A of the BCCM Act 1997 that might have defamation material in it. The exact wording of section 111A of the BCCM Act 1997, is:

“(1) This section applies if—

(a) the committee for the body corporate for a community titles scheme publishes required material for a general meeting of the body corporate under the regulation module applying to the scheme; and

(b) the required material contains defamatory matter.

(2) Each of the following is not liable for defamation by the publication of the defamatory matter as mentioned in subsection (1)—

(a)the body corporate;

(b)the committee, or a member of the committee, other than a member of the committee who submitted the motion or explanatory note containing the defamatory matter.

The last part clarifies that if you submit a motion under section76 and it contains defamatory material, you have not protection under section 111A of the BCCM Act 1997.

What required material exactly is relavant,  because only that material under the definition of “required material” enacts the protection of section 111A of the BCCM Act 1997.

Required material is defined in section 111A of the BCCM Act 1997, as:

“ any of the following required under the regulation module applying to the community titles scheme to be published for the general meeting—

(a) a motion submitted other than by or for the committee for the general meeting (section 76 of the regulations);

(b) the substance of a motion mentioned in paragraph (a);

(c) an explanatory note for a motion mentioned in paragraph (a) prepared by the submitter of the motion (section 80(1)(a)).

From the above it clarifies that a motion submitted by or for the committee have no protection from defamation under section 111A of the BCCM Act 1997,

So,  to be required material, 

  1. the material can only be the substance of a motion submitted under section 76 of the regulations or an explanatory note give by the submitter of the section 76 motion, to the secretary, and 
  2. the publishing of the any material must occur under the regulations for the publication of notices, voting papers, explanatory schedule and minutes of general meetings.

From the above it this further clarifies that, 

  1. motions by the committee
  2. chairman statements
  3. committee reports

, commonly accompanying notice, agenda and minutes, are defined as required material and have no protection for the to the body corporate and the committee from defamation under section 111A of the BCCM Act 1997:

The regulations for the publication of notices, voting papers, explanatory schedule and minutes of general meetings, are sections 72 to 83,  and 107.

If these regulation do not apply, the publication of any material would not be required.

When assessing the validity of any decision of the committee that enacts sections 72 to 83,  and 107 you  also have to consider section 100(5)  of the BCCM Act 1997, that reads

“The committee must act reasonably in making a decision”

The body corporate records for the correspondence from  Ora Whaanga (owner lot 21), Lynne Smith (owner lot 4) and Danelle Jones (owner lot 13) have been reported as showing the email were sent to the body corporate manager before the 31st July 2022.

If we accept motions 11-20 were made in response to section 76(5) and were given to the secretary before the end of the body corporate’s financial year immediately preceding the meeting. There are serious concerns around  the decision to publish  motions 11-20. These concerns are:

  1. if the correspondence for a motion to be submitted was received before the 31st July 2022, why was it not raised as a correspondence in the agenda the committee meeting on 24th August 2022. 
  2. if the correspondence for a motion to be submitted was received before the 31st July 2022, why were the motions not submitted considered by the committee, under section 93(1) to allow the committee to prepare an agenda for the  general meeting that was called..

The possibilities of what happened could be related to the:

  1. the behaviour of the body corporate manager. If Archer (BCM) Gold Coast if they did not send the emails from Ora Whaanga (owner lot 21), Lynne Smith (owner lot 4) and Danelle Jones (owner lot 13) to the secretary before the 24th August 2022 committee meeting then Ora Whaanga would not have know to present the emails. 

Emails sent from the body corporate manager to the committee would be in the body corporate records could be checked.

However, if Ora Whaanga was both the secretary and sender of some of the  emails, then she should have reasonably been aware if the emails were  not sent by the body corporate manager in time for the 24th August 2022 committee meeting. This make  the possibility of the Archer (BCM) Gold Coast did not sending the emails to  Ora Whaanga unlikely.

  • behaviour of the secretary  Ora Whaanga , who sent some of the motions as a lot owner of 21. It could be suggested that actions not to declare the correspondence of consider the motions, is prompted by spite, or ill-will, against the character of Mr Wurth. The desire to not to make him and other members of the committee aware of the motions and present the opportunity to make a reasonable decision as a committee to not publish the motions.

The evidence that the behaviour of the Ora Whaanga, was promoted by spite, or ill-will, of is strengthened by her previous behaviour. 

Ora Whaanga, was a member of the committee for somerset gardens at the committee meeting on the 15th August 2018. Though not in attendance at the meeting, she would have received the agenda for the meeting and she sent a proxy to the meeting. She would have received  the minutes as the owner of lot 21. 

Before the meeting on 15th August 2018, the committee received motions from an owner to be submitted to the annual general meeting. The committee arranged for Mr Peter Hunt and Ms Hayley Gath (lawyers from MHL Legal, the body corporates solicitors) to attend the meeting on 15th August 2018. The committee passed a resolution to amend the agenda to discuss the motions of the owner at the beginning of the meeting. The owner presenting the motions was asked to leave during discussion. The motion was passed by the committee with Whaanga’s proxy voting for the motion that:

“The strata manager inform the owner of lot  of the advice of the solicitors and that her motions be ruled out of order on the day, however, that she is given the option to withdraw before the AGM  and further the committee would like to discuss with her the items raised in her motions and a resolution to her concern obtained, Further that if the motions are put forward that the advice from MHL will be used to rule the motion out of order that they are invalid and the committee would write there own explanatory notes to reflect their ideas to the private owner motions”

This is  evidence that Ora Whaanga, should have reasonably known of the reasonable requirements expected of the committee in a dealing with motions from a lot owner come,  from her time on the same committee in 2018. 

Further to add to evidence that Ora Whaanga, should have reasonably known of the reasonable requirements expected of the committee That committee,  is that the same committee, via the body corporate manager, wrote to the lot owner on the 6th September 2018 and noted

  • the committee and the lot owners met for internal resolution of a complaint on the 4th September 2018 (which Ora Whaanga was in attendance at), and
  • the committee agreed in the letter:

“that all future decision made by the committee will coly with the legislation and conducted at a committee meeting or by way of Vote Outside of Committee.

The  behaviour of Ora Whaanga, suggest that she was promoted by spite, or ill-will and the decision to publish motions 11-20 was hers and not a decision of the committee. As a consequence the publication of motions 11-20 was NOT required.

The issue is that Archers (BM) Gold Coast did publish publication of motions 11-20 on behalf of the body corporate. As such the protections of 111A of the BCCM Act 1997 to the body corporate and the committee would NOT be available.

Even Archers (BM) Gold Coast took instruction from more than one individual who was on the committee in the decision to publish motions 11-20. As moted, the regulations are clear on how  a committee makes a decision.  A committee can only make a decision at a meeting, under section 57(1), or by way of vote outside of committee meeting (VOCM), that require steps to be done under section 60(1), being a notice of the motion give to all committee members and at the same time, advice of the motion, given to lot owners and a motion voted on under this section must be confirmed at the next meeting of the committee held after the motion is voted on.

There is no evidence of the events above having occurred so there could be not valid decision of the committee expressed to Archers (BM) Gold Coast to publish the material.

The actions Archers (BM) Gold Coast may lessen the liability of the not eliminate liability to the body corporate and the committee for defamatory content being published.

Before moving to the issues with the calling and production agenda for the annual general meeting that happened in the meeting on 24th August 2022, we should consider that Ora Whaanga  (secretary) and Lynne Smith (treasurer), they submitted to the general meeting under section 76 and held pivotal roles on the executive of the committee.

Section 101A of the BCCM Act 1997, allows  that committee member is not civilly liable for an act done or omission made in good faith and without negligence in performing the person’s role as a committee member.

The actions of Ora Whaanga  (secretary) and Lynne Smith (treasurer), can be held to be that their acts  are NOT done in good faith. This is demonstrate by their motions  submitted to the general meeting, and their actions as committee members to  put the motions on the agenda and in voting papers, without proper process under the regulations, 

Likewise, noting the previous actions Ora Whaanga  (secretary) and Lynne Smith (treasurer),  in 2018, their acts  COULD BE FOUND to be negligent, because of advice that was given to them as previous committee.  

The actions of Ora Whaanga  (secretary) and Lynne Smith (treasurer may lessen the liability of the not eliminate liability to the body corporate and the committee for defamatory content being published.

There are also issues with the calling and production agenda for the annual general meeting that happened in the meeting on 24th August 2022, 

  1. the committee did not consider, under section 72(1), a resolution to authorise a member of the committee to call “the particular meeting”,  but passed the motion below (as detailed in the minuted of the meeting)

Of note is that section 72(1) says:

“A general meeting may be called by a member of the committee, including a non-voting member of the committee, if the member is authorised by a resolution of the committee to call the particular meeting.”

This resolution is to “call and convene” and does not authorised by resolution that a general meeting may be called a member of the committee” 

Equally, concerning is, as can be seen it the minutes meeting on the 24th August 2022 the date chosen for the annual general meeting was the 12th October 2022 and the venue was King College. 

The annual general meeting was held on the 26th October 2022 and the venue was Archers Gold Coast, Level 3, Southport Central Tower, 9 Lawson Street, Southport, a distance of 16 km from Somerset Gardens.

It is noted that there is no confirmation in the minutes of the next meeting of the committee on the 28th November 2022  (required under section 60(5)) of any VOCM held between the committee meeting on the  24th August 2022 and the notice being made for the AGM held on the 26th October 2022

  • to authorise a member of the committee to call “the particular meeting” on the 16th October 2022.
    • Notify the owners of the committee’s intention to hold the meeting at a stated place, mor than 15 km from the schedule land and allow the owners reasonable opportunity t object in writing to the proposed place by the stated date, under section 82((2)(a) of the regulations 
  • The minutes of the committee meeting on 24th August 2022, reflect committee passed the following motion at the meeting on 24th August 2022,

The committee did not consider, under section 83(1), a motions to prepare an agenda for the general meeting that was called. The motion above, instructs the body corporate manager to prepare the agenda. However, the instructions are not consistent with section 83(2)(a)(iii) of the regulations, that require:

“the substance of the following motions—

(iii)    a motion submitted under section 76 by a member of the body corporate and required to be included on the agenda, other than a motion stated on the agenda as an original motion under a group of same-issue motions;

With the non compliance of section 72(1) and section 83(2)(a)(iii) the calling of the general meeting and the production of the agenda would be invalid. As a consequence the publication of motions 11-20 was NOT required. Thus, the protections of 111A of the BCCM Act 1997 to the body corporate and the committee would NOT be available.

The final consideration is Section 100(5)  of the BCCM Act 1997, requires that the committee must act reasonably in making a decision.

Even allowing for the non compliance with the regulations and the acts of at least Ora Whaanga, as secretary  and possibly,  Lynne Smith as an executive member of the committee, the action to publish motions 11-20 could be considered unreasonable because

  1. Ora Whaanga  (secretary) and Lynne Smith (treasurer)  had a conflict of interest, in the motions they submitted and should have disclosed that to the committee and there is no evidence in the minutes of the committee meeting on the 24th August 2022 that occurred,
  2. under the principals decided in the QCAT decision,  Albrecht v Ainsworth & Ors [2015] QCA 220, there is no evidence in the minutes that the committee meeting of the 24th August 202, that the committee:
    1. made a decision based upon a consideration of all relevant circumstances.
    1. Made a consideration in an objective and fair manner of all the relevant facts and circumstances
  3. Under the high court’s review of the decision in decision,  Albrecht v Ainswortf,  the decision, as any part of the committee, to publish the motions and explanatory notes,  were prompted by spite, or ill-will, against the charact of Mr Wurth, demonstrated in the evidence of: 
    1. the  past actions Ora Whaanga  (secretary) and Lynne Smith (treasurer) towards Mr Wurth and
    1. the wording and nature of the motions submitted  by Ora Whaanga  (secretary) and Lynne Smith (treasurer), 

If the decision of the committee is unreasonable, the material and the publication was NOT required from an unreasonable decision.  Thus, the protections of 111A of the BCCM Act 1997 to the body corporate and the committee would NOT be available.

[1] All the references to sections apply to section of the of the BCCM (accommodation module) Regulation 2022, unless stated otherwise.