QLD: Q&A Can I Access Body Corporate Records?

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Qld lot owners would like to know whether they can access body corporate records.

Table of Contents:

• QUESTION: What records/registers must the secretary or body corporate manager bring to the AGM?
• QUESTION: If requested, should the body corporate provide a lot owner with access to communications, especially emails, between committee members?
• QUESTION: Our committee has a “committee email address” for all owners to contact the committee. Are these emails Body Corporate records and should owners be able to access them?
• QUESTION: Is any member of the committee able to access the strata information to view the levy amounts paid by each lot owner?
• QUESTION: As owner residents, we are in the minority in our large complex. Concerned about committee decision for expenses, are we entitled to know the committee members who also own investment units?
• QUESTION: Is only the Chairperson allowed to contact the Body Corporate Management company?
• QUESTION: As a lot owner, I’d like to have access to some of our body corporate records. Shouldn’t these be posted to the strata portal for the information of all?
• QUESTION: Our large complex on the Gold Coast does not have audits. I’d like to carry out an audit but the Body Corporate Manager is refusing me access to the body corporate financial records unless I pay a large fee.
• QUESTION: I have Adjudicators Order to obtain certain financial records of the Body Corporate. The Committee and Strata Manager are refusing access and obstructing the Adjudicators order. What are the next legal steps?
• QUESTION: Can a lot owner, strata committee member, strata secretary or owner carry out a strata roll inspection? What qualifies access and what are they entitled to inspect?

Question: What records/registers must the secretary or body corporate manager bring to the AGM?

Apart from the owner roll, voting papers, POAs and proxies, what other records/registers must the secretary or body corporate manager bring to the AGM?

May owners inspect/scrutinise these documents IMMEDIATELY before the AGM and if so, must an inspection fee be paid?

Answer: Section 92 of the Standard Module outlines which documents must be taken along.

Section 92 of the Standard Module provides as follows:

The secretary must have available for inspection by voters at the general meeting—

1. the body corporate’s roll; and
2. a list of the persons who have the right to vote at the meeting; and
3. all proxy forms and voting papers.

There’s no fee prescribed for inspection under this section.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #462.

Question: If requested, should the body corporate provide a lot owner with access to communications, especially emails, between committee members?

Experience suggests that records of communications (especially emails etc) between committee members and legal representatives are not regularly maintained by the body corporate.

Solicitors must however maintain such records along with, for example, court documents (including Statements of Claim, affidavits) and contemporaneous notes of conversations.

Records maintained by solicitors are ordinarily considered ‘client records/documents’ and upon request must be released to the client so long as they are not subject to a lien.

Save where those records pertain to a dispute between the body corporate and the lot owner or contain defamatory information, should the body corporate ensure that upon request by an owner (for example in relation to a court proceeding) be provided to an owner requesting access to such records?

Answer: Lot owners have a right to obtain body corporate records upon payment of the prescribed fee. However, the body corporate has the right to claim privilege over certain legal documents.

Lot owners have a right to obtain body corporate records upon payment of the prescribed fee. However, the body corporate has the right to claim privilege over certain legal documents. Whether privilege applies depends on the circumstances – for example, who is asking for the record and what the record relates to.

This was well explained in One The Esplanade [2017] QBCCMCmr 326 where the adjudicator relevantly provided:

“The common law doctrine of legal professional privilege entitles the client of a lawyer to withhold access to documents which fall within the scope of confidential lawyer-client communications. Central to the doctrine of legal professional privilege is the concept that communications or documents made for the ‘dominant purpose’ of obtaining or giving legal advice, and/or conducting actual or contemplated litigation, are protected.

Legal professional privilege is an important common law immunity that can only be removed by clear and unambiguous words. The Act does not explicitly remove this immunity so a body corporate has the same right to privilege as any other legal client. Therefore the body corporate does not need to disclose records that attract legal professional privilege. That said however, the doctrine has limited application where access to documents held by the body corporate, is sought by a member of the body corporate.

In the case of The Owners — Strata Plan No 74602 v Eastmark Holdings Pty Ltd [2013] NSWCA 221, the NSW Court of Appeal considered an equivalent provision of the New South Wales legislation. The Court affirmed that the section does not revoke a body corporate’s right to claim legal professional privilege. However a lot owner is a member of the body corporate and unless the lot owner is an adversary, that lot owner will share a common interest with the body corporate. Where a lot owner is an adversary, i.e. is an opponent in legal proceedings, or is likely to become an opponent in legal proceedings, a body corporate is entitled to withhold access to documents from the lot owner on the basis of legal professional privilege. Where legal advice is obtained in relation to a third party, the interests of the body corporate and lot owners will generally align and the body corporate is not entitled to claim legal professional privilege in respect of communications with its lawyers.”

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in the March 2021 edition of The QLD Strata Magazine.

Question: Our committee has a “committee email address” for all owners to contact the committee. Are these emails Body Corporate records and should owners be able to access them?

Our committee has set up a “committee email address” separate from our Strata manager’s and advised all owners that this is the address for owners to contact the committee. Our Strata management cannot or do not supply access for viewing any of this correspondence. Are these emails BC records and should owners be able to access them?

Answer: The committee may have legitimate reasons for channelling correspondence in this way.

A body corporate must keep the roll, registers and records and documents given to or created by the body corporate. Emails sent to an email address listed as being for body corporate matters would seem to meet those conditions.

Records must be kept by the secretary – they do not have to be kept by the body corporate manager although most agreements delegate these duties to the manager. More pertinently you may want to ask why the inbox has been created and what the goal of it is. The committee may have legitimate reasons for channelling correspondence in this way and would hopefully be able to explain that to owners.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #456.

Question: Is any member of the committee able to access the strata information to view the levy amounts paid by each lot owner?

Answer: Levy amounts are part of the body corporate records. Therefore a committee member is able to obtain a copy of or inspect those records. It’s probably worth noting at this juncture that the reverse applies too: an owner can inspect the levy amounts of any committee member.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #451.

Question: As owner residents, we are in the minority in our large complex. Concerned about committee decision for expenses, are we entitled to know the committee members who also own investment units?

As owner residents opposed to holiday letting investors, we are in the minority in our large class 2 building.

Our strata fees are $300 per week for a small 2 bedroom apartment as a substantial loan for building upgrades needs to be paid off over the next 7-8 years.

Continuing upgrades to the complex are mostly relate to ‘resort’ facilities.

Are we entitled to know the committee members who also own investment units?

Answer: An owner is not entitled to require other owners to provide them with information about whether they are an owner occupier or investor.

No – an owner is not entitled to require other owners to provide them with information about whether they are an owner occupier or investor. However, an owner is entitled to search the body corporate record or ask other owners (you just may not get a response).

There also may be information on the body corporate record that allows you to conclude whether a lot is owner occupied or tenanted.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #441.

Question: Is only the Chairperson allowed to contact the Body Corporate Management company?

Answer: I know that some committee’s try to restrict owners from contacting the Body Corporate Manager to prevent additional BCM fees from incurring, however there is no legislation in place that prevents an owner from contacting their body corporate manager.

Tammy Lynch
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #397.

Question: As a lot owner, I’d like to have access to some of our body corporate records. Shouldn’t these be posted to the strata portal for the information of all?

As a lot owner, am I able to access our body corporate records such as:

• Strata Financial Audit reports;
• Workplace Health & Safety reports;
• Sinking Fund Forecasts

Should these be posted on the strata portal for the information of all owners.

Answer: If they are body corporate records, they should be available to owners.

If they are body corporate records – which they are – they should be available to owners. I am not sure there is an obligation to post them to portals, but if owners want them they are certainly entitled to them.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #303.

Question: Our large complex on the Gold Coast does not have audits. I’d like to carry out an audit but the Body Corporate Manager is refusing me access to the body corporate financial records unless I pay a large fee.

We own a Unit in a large Residential Strata Title Complex on the Gold Coast Queensland with over 500 lots.

At the last AGM the committee requested that in order to save the building money, the lot owners vote for no audit. The motion was passed and now we have no audit.

With such a large build and expenditure in the high millions each year I am concerned.

I wish to have an audit carried out myself just to ascertain that all is well and above board.

The Body Corporate Manager is refusing me access to the body corporate financial records unless I pay them a very large sum of money. Their argument is that the financial reports have to be prepared by them and I must pay them for that time.

How can this be right? The Body Corporate owns the Licence for the software and all I require is to access that software and then download the requested files myself.

The Body Corporate manager says they have received legal advice and will not allow me to access the files.

Is the Body Corporate Manager in their rights by not allowing me free access to the files we have already paid for? If the legislation states that they have to grant me access, but they still refuse, what can I do?

Answer: The owner should make a formal records request including a down payment on the prescribed fee.

We would suggest that the owner makes a formal records request including a down payment on the prescribed fee (of what you think a reasonable estimate would be) – the body corporate or manager cannot charge you more than what the prescribed fee is on a per page basis if you want them to send you the records.

Otherwise the owner could arrange for their own inspection of the records (for a set fee).

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #298.

Question: I have Adjudicators Order to obtain certain financial records of the Body Corporate. The Committee and Strata Manager are refusing access and obstructing the Adjudicators order. What are the next legal steps?

I have an Adjudicators Order to obtain certain records of the Body Corporate, mainly financial records from over the last five years.

The Body Corporate Committee and the Strata Manager are refusing access and obstructing the Adjudicators order.

I am now proceeding to an enforcement order in the Magistrates Court and the appointment of an Administrator, being another Strata-Manager, to enforce the order. What are the next legal steps if the existing Strata Manager refuses to provide the requisite records to the Administrator so appointed?

Answer: The next step would be a Complaint and Summons pursuant to the Justices Act which might prompt compliance.

The next step would be a Complaint and Summons pursuant to the Justices Act which might prompt compliance.

It won’t necessarily get orders for compliance, but it is a quasi-criminal application and penalties (fines) can be imposed. The Complainant won’t get the benefit of the fine but may get costs back and it can be a good incentive for compliance if the offenders are having to front Court and explain why they aren’t complying with an order.

Time limits apply though. These are 12 months from date of offence.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #267.

Question: Can a lot owner, strata committee member, strata secretary or owner carry out a strata roll inspection? What qualifies access and what are they entitled to inspect?

Who has access to the file kept by our strata manager containing a history of minutes, paid accounts etc. apart from the strata manager & their staff?

Can a lot owner, strata committee member, strata secretary or owner carry out a strata roll inspection? What qualifies access and what are they entitled to inspect? If access is given, what responsibility does the strata manager have to advise the other owners, or in fact seek their approval, beforehand?

Answer: Lot owners and Committee members are allowed access to the records and the Strata Manager must make all of the records available to you.

Lot owners and Committee members are allowed access to the records and the Strata Manager must make all of the records available to you (other than any record that may contain defamatory material). There is no requirement for the Manager to seek approval from either the Committee or other owners. You as a Committee member or an owner are effectively requesting access to your own records. Each state has different requirements for payment of fees etc.

There is a misconception that the Strata Manager can restrict access to records they hold on behalf of the Strata Corporation (Body Corporate). Some Strata Managers have been reluctant to allow access to the Roll and issues frequently arise when an owner is refused access. There are various recent articles by Legal Professionals in relation to this issue, however, under current Legislation, a Strata Manager must allow access to the records and the Roll if requested as there are no privacy laws overriding an obligation to provide them.

Other “interested parties”, for example a buyer of a Lot or Mortgagee, can also access the records upon giving the required notice and payment of a fee.

Dee Pannell
Body Corporate Matters
E: [email protected]
P: 0409 873 181

This post appears in Strata News #173.

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