The recent case of Owners Corporation PS 331362S v Domingo (Owners Corporations) [2023] VCAT 404 (Domingo) clarifies the requirements under section 85 of the Act for notice in respect of a ballot following the enactment of the Owners Corporations and Other Acts Amendment Act 2021.

This clarification is important for owners corporations as previously ballots could be open for more than 14 days (see Barintore Nominees Pty Ltd v Owners Corporation Plan PS SP 22934S [2019] VCAT 406). The Tribunal found in the Domingo case that the owners corporation breached s 85 of the Act by keeping the ballot open for a period of 60 days.

The Tribunal found that s 85(2)(a)(i) requires that the notice of the ballot must include the closing date being 14 days after the date of the notice, with Senior Member Price stating:

I find it was the intention of parliament in amending s 85 to put in place provision for a short and sharp ballot, one in which the outcome would be known within a short period of time, and in which there would be less of an opportunity for the exertion of pressure on a lot owner as to how to cast their vote.

The Tribunal also found that this would require an owners corporation to post (if an email address were not available) with sufficient time to ensure that the notice is given, so that the lot owner has at least 14 days notice of the end of the ballot to consider and cast their vote.

Further information / assistance regarding the issues raised in this article is available from our Owners Corporation Team, Fabienne Loncar, Partner and Christopher Philactides, Senior Associate, or your usual contact at Moray & Agnew.