Owners Corporation Managers Cannot Claim “Privacy” for Access to Strata Records

Owners corporations employ owners corporation managers to keep the books and records of the owners corporation. A problem often arises when owners corporation Committees and Owners want access those records.

Section 146 of the Owners Corporations Act 2006 (Victoria) covers the availability of records:

146. Availability of records

  1. (1)  The owners corporation, on request by a lot owner, a mortgagee of a lot, a purchaser of a lot or the representative of a lot owner or mortgagee or purchaser of a lot, must make the records of the owners corporation required to be kept under this Division available to that person for inspection at any reasonable time, free of charge.
  2. (2)  The owners corporation may at the request of a person entitled to inspect the records and on payment of a reasonable fee provide a copy of any record of the owners corporation.
  3. (3)  A fee determined by the owners corporation for the purposes of this section must not exceed the prescribed maximum fee.

 

Pretty straight-forward – however a convenient counter-argument regularly used by owners corporation managers in Victoria has been – privacy.

Whether it’s state based legislation, the National Privacy Principles, or just the notion of privacy – it has been a road-block to Committees and Owners wanting to access their records. The tide however appears to be changing for owners corporations and owners corporation managers.

A recent decision in NSW by the NCAT’s Appeal Panel confirmed there is no privacy in the strata records, meaning the owners corporation manager must allow a person can inspect strata records that may otherwise be considered private or the personal information of another person.

 

Summary of the Tribunal’s Reasons

  1. The Tribunal stated in its Reasons for Decision (Reasons) that the records and documents originally sought by the appellant were set out in an email to the respondent’s Strata Manager dated 23 November 2019. They were described in the Reasons as “detailed transaction listing for levies paid by each lot owner for the financial years 2018/19 and 2019/20” [3]. The appellant’s reasons for requesting the records and documents was attributed to his “suspicions” that there were “unauthorised credits” in the financial and accounting records of the respondent. The Tribunal noted that the appellant “accepted that he had no evidence to support his suspicions or concerns.”
  2. The Tribunal found that the respondent had provided to the appellant certain accounting records including audited accounts which evidenced, among other things, total contributions paid into the Administrative and Capital Works Funds, the total of levies due in a “Statement of Financial Performance” and a record of “Levy Positions” which showed “levies for each lot, any arrears and whether any interest was due or paid on outstanding levies”. Another document comprised extracts of an “Aged Arrears List” and showed certain outstanding levies for particular lots and the dates of “last debt recovery”.
  3. The Tribunal found at [24] that under s 93(2)(e) and (f) of the SSM Act, certain information must be included in the financial statements and that the appellant was not entitled to further information comprising the “detailed transaction listing for levies paid by each lot owner for the financial years 2018/19 and 2019/20” because that information was not required by ss 93(2)(e) and (f).
  4. The Tribunal concluded at [25] that “as a matter of discretion” the application under s 188 of the SSM Act should be “rejected” because:
  1. the documents in evidence “are sufficient to satisfy the [appellant’s] enquiries”;
  2. there is no evidence the respondent “wrongfully failed to make documents available” to the appellant;
  3. as a “matter of privacy of all lot owners” detailed records for each lot are not required to be made available; and
  4. the records sought “are not requirements for the financial statements pursuant to s 93” of the SSM Act.

Read full NCAT ruling here:

Walker v The Owners – Strata Plan No 1992 [2020] NSWCATAP 192
Strata Management Company
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