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: tgarsden@mahoneys.com.au
P: 07 3007 3753
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