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

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

Table of Contents:

• QUESTION: Should all lot owners have to subsidise fees for sending mail and paper copies to owners who don’t use email?
• QUESTION: Is a committee member permitted to share financials with another lot owner as published to the committee by the strata manager?
• QUESTION: I feel our audited financial reports do not disclose clearly to unit owners all relevant financial information. Might the body corporate be requested to reproduce the statements in a more appropriate format?
• QUESTION: Can I bring along a friend or fellow lot owners to help me inspect body corporate records? Is there a time limit?
• QUESTION: Can a lot owner get full copies of the body corporate roll. Am I able to access a tenant’s details or are some records restricted from lot owners?
• 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: Should all lot owners have to subsidise fees for sending mail and paper copies to owners who don’t use email?

Is there is any advice to our Body Corporate regarding 120 lot owners who are on email, subsidising the additional Body Corporate mailing costs of the remaining 20 lot owners who are not on email?

Our Strata Manager has just charged $980 to print and mail out a 100pp document to the 20 lot owners who don’t use email.

There was a much lesser cost to email this same 100pp document as PDF to the other 120 lot owners.

Answer: Talk to your body corporate company and see if they could offer an incentive to lot owners to change.

Good point, but the only requirement is that owners must be contacted at a legal address. This can be an email or postal address, but if people request to be contacted by mail that is where the correspondence has to go.

Still, you may want to make this issue clear to those owners who still use postal addresses. The likelihood is that most of them will have never considered the implication or never taken their time to update to their email address.

Perhaps you could talk to your body corporate company – they might offer a discount on disbursement fees if enough owners are on email and this could be an incentive to change.

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

This post appears in Strata News #514.

Question: Is a committee member permitted to share financials with another lot owner as published to the committee by the strata manager?

Is a committee member permitted to share financials with another lot owner as published to the committee by the strata manager – eg. the quarterly income and expenditure statement for admin and sinking accounts and the general ledger.

Are they regarded as private documents, available only to the committee?

Answer: In some circumstances, it may not be in the Body Corporate’s interests for the information to be shared

Under section 231 of the Standard Module, a body corporate is obliged to keep certain records, including accounting records and statements of account for each financial year. Likewise ‘associated committee meeting material’ must be retained. That associated material includes notice of meetings, including agendas and attachments (such as financial statements).

Under section 233 of the Standard Module, a lot owner can access the records of the body corporate by completing and lodging the required BCCM Form 12, with the Body Corporate (where the body corporate is managed, care of the body corporate manager) and paying the required fee. Access is via inspection or delivery of copies.

There is no (direct) injunction upon a member of the committee providing body corporate records to a lot owner, but committee members should ensure that in doing so they do not breach their obligations under the Code of Conduct in Schedule 1A to the Act. In some circumstances it may not be in the Body Corporate’s interests for the information to be shared, for example until after the relevant committee meeting is conducted.

Committee members are not permitted to disclose information held by the body corporate, including information about an owner of a lot, where that would be unfair or unreasonable (unless required by law to make the disclosure).

Michael Kleinschmidt
Stratum Legal
E: [email protected]
P: 07 5406 1282

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

Question: I feel our audited financial reports do not disclose clearly to unit owners all relevant financial information. Might the body corporate be requested to reproduce the statements in a more appropriate format?

I am a residential lot owner in a large body corporate complex in Brisbane. 63 floors are up-market residential units and 12 are operated by an international hotel chain.

At the recent AGM, audited financial reports (statements) of the body corporate for the prescribed period were presented and accepted as appropriate in the circumstances. Those same reports, however, did not disclose clearly to unit owners all relevant financial information of concern. They seemed to be rather misleading or vague in some important material respects and failed to communicate properly and in detail all of the information that might be considered reasonable in the circumstances. It appears those statements are prepared automatically using an ‘industry specific’ body corporate management whiz-bang computer system. This, therefore, may be a software deficiency – user friendly but poor on presentation.

I understand the notion of ‘special reports’ and am familiar with relevant legislature and the current views of the Australian domestic accounting bodies as to their use and purpose. International accounting standards, however, emphasise more concepts of full disclosure and proper communication. In the circumstances, might the body corporate be requested to reproduce the statements in a more appropriate format?

Answer: Is there any reason for the body corporate to change its agreed practices to meet the wishes of the one owner?

I think this question is really about the extent to which the body corporate needs to adapt to the needs of an individual owner.

From the information provided, it seems the accounts have been presented in a format that is acceptable to an independent auditor, who is presumably familiar with strata accounts, and to the body corporate, who have approved them at a general meeting. One owner, who seems knowledgeable about different types of accounting, would like a different standard of reporting to be used.

Is there any reason for the body corporate to change its agreed practices to meet the wishes of the one owner? Unless the owner can demonstrate that the accounts are actively wrong it’s hard to think of why this should. Body Corporates are run by majorities and the majority has indicated they are satisfied. Individual owners have to accept that they are part of a collective – you don’t always get what you want when you are part of a bigger system.

For the owner, this doesn’t mean that their opinion is invalid or that there are no further avenues for discussion. If you have reasonable questions about the accounts then the Committee and body corporate manager will usually be happy to discuss them. Then, motions can be presented to committee and general meetings. You can request the changes you want and see if other people will agree with you. In this case, I suspect the changes may be difficult to achieve as the strata company can’t just change its accounting system and owners may not want any additional costs associated with different reporting and recording standards, but it never hurts to ask. The important thing is to understand that owners need to reach collective decisions and while anyone can propose an idea, others have equal rights to accept and reject that.

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

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

Question: Can I bring along a friend or fellow lot owners to help me inspect body corporate records? Is there a time limit?

I propose to inspect certain body corporate records and pay the prescribed inspection fee. The body corporate records are voluminous and I expect that inspection will take more than one day.

Is there anything preventing me from having a friend or fellow owners assist me?

Other than conducting the inspection during business hours, is there any limit on the length of time which could be imposed to conduct the inspection?

Answer: Your right to inspect records is based upon you being what is called an ‘interested person’.

Your right to inspect records is based upon you being what is called an ‘interested person’. Refer to section 205 of the BCCM Act for further details. In short, an interested person can be a lot owner, mortgagee, the buyer of a lot and it can also be another person who satisfies the body corporate of a proper interest in the information sought (which might usually capture a tenant, for example), or the agent of any of these.

A friend of yours who isn’t an owner may struggle to meet the above definition and I think you’d be hard pressed to argue how someone who has nothing to do with your body corporate has any proper interest. That said, a fellow owner would and feasibly you could bring them to assist you. You’d want to be sure you notified the body corporate of this, as a courtesy if nothing else. In the instance where you’d want to bring someone who wasn’t an interested person, you can always ask, but don’t be surprised if you get a refusal.

There is no time limit on inspection.

Let me ask you: are you sure there is nothing you can do beforehand to narrow down the focus of your inspection? That will save you time and also ultimately save you some money. If you are proposing to inspect at the body corporate manager’s offices, then be aware the body corporate manager may have as part of their agreement certain disbursements for which the body corporate would be liable for the time the body corporate management firm spends attending to your inspection. You’d ultimately be meeting some of those costs through your levies.

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

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

Question: Can a lot owner get full copies of the body corporate roll. Am I able to access a tenant’s details or are some records restricted from lot owners?

Answer: If you are an ‘interested person’ – and a lot owner is an ‘interested person’ – then yes, you are entitled to access the roll.

If you are an ‘interested person’ – and a lot owner is an ‘interested person’ – then yes, you are entitled to access the roll. Of course, if the roll has not been updated with correct details, then you can’t access something which does not actually exist.

If there is a tenant with a lease of six-months or more then that information should be recorded on the roll and if the body corporate is aware that the roll is lacking this information then ideally it should be communicating with the owner or the real estate agent, if there is one, to get those details so that the roll is up to date. A roll serves no useful purpose if it is not current.

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

This post appears in Strata News #478.

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.

Have a question about accessing body corporate records or something to add to the article? Leave a comment below.

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