This article about strata records and privacy laws has been provided by Adrian Mueller, JS Mueller & Co Lawyers.
NCAT’s Appeal Panel has decided that strata records are not protected by privacy laws and that an owner is entitled to inspect strata records that relate to other owners. This decision clarifies that a strata manager cannot withhold strata records which an owner has a right to inspect under the Strata Schemes Management Act 2015.
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The Facts
In Walker v The Owners -Strata Plan No.1992 [2020] NSWCATAP 192, the Appeal Panel of NCAT heard an appeal by a lot owner, Mr Walker, against a decision by NCAT to refuse to order an owners corporation to provide him with a copy of a levy register for his building which he requested from his strata manager.
Mr Walker wanted the owners corporation to provide him with a copy of the levy register for all lots over the last two financial years. The levy register showed all levy payments made by the owners of all of the lots in Mr Walker’s building.
Mr Walker wanted the levy register because he was concerned that there were “unauthorised credits” in the financial and accounting records of the owners corporation.
The Dispute
The strata manager of the owners corporation had refused to provide Mr Walker with a copy of the levy register. This was for a variety of reasons including the fact that Mr Walker had already been provided with various financial records of the owners corporation including records attached to the notice of annual general meeting. It was also because the levy register contained details of levy payments that had been made by other owners which the owners corporation considered Mr Walker had no genuine interest in and contained private information about other owners.
Mr Walker applied to NCAT for orders to force the owners corporation to provide the levy register to him. His claim was rejected. NCAT considered that the documents the strata manager had provided Mr Walker were sufficient to satisfy his enquiries and as a “matter of privacy of all lot owners” detailed records for each lot owner were not required to be made available to Mr Walker.
The NCAT Appeal
Mr Walker appealed against NCAT’s decision. His appeal was successful. The Appeal Panel of NCAT reviewed the provisions in the Strata Schemes Management 2015 and the Strata Schemes Management Regulation 2016 which require the owners corporation to prepare and retain financial statements including a levy register and give lot owners a statutory right to inspect those records.
Ultimately, the Appeal Panel concluded that those provisions indicate that an owners corporation must make available for the inspection of an owner the accounting and other records relating to the strata scheme that are kept by the strata manager including the levy register where a proper request to inspect those records has been made by an owner under section 182.
The Appeal Panel rejected the owners corporation’s argument that certain accounting records, including the levy register, involve an individual’s privacy and that it was inappropriate for Mr Walker to have access to private information of that type. The Appeal Panel held that if the Strata Schemes Management Act 2015 gives an owner a right to access information, then the owner is generally entitled to inspect that information and that NCAT’s conclusion that “as a matter of privacy of all lot holders, detailed records for each lot are not required to be made available” to Mr Walker was wrong.
The Appeal Panel considered that “the legislation permits inspection of the levy register and to that extent Parliament has indicated that information contained in the levy register is not protected by considerations of privacy”. For those reasons, the Appeal Panel ordered the owners corporation to make available to Mr Walker for his inspection the levy register held by the strata manager.
An Earlier Case
The decision in the Walker case is consistent with an earlier decision of the CTTT. In that earlier decision, the CTTT held that information recorded on the strata roll of an owners corporation including the names and contact details of lot owners was not protected by privacy laws and had to be made available for the inspection of other owners after a proper request to inspect the strata records was made in accordance with the strata legislation: see Legge v Network Strata Services Pty Ltd [2013] NSWCTTT 45.
Conclusion
The Walker case confirms that a strata manager or owners corporation cannot refuse to make available for the inspection of an owner records which the owner is entitled to inspect under the Stata Schemes Management Act 2015 on the grounds of privacy and that those records are not protected by privacy laws.
Adrian Mueller
Partner + Senior Lawyer
JS Mueller & Co Lawyers
E. [email protected]
W. https://muellers.com.au/
P: 02 9562 1266
This post appears in Strata News #422.
If you have a question about records not protected by privacy laws or something to add to the article, please leave a comment below.
Disclaimer: The information contained in this article is provided for your personal information only. It is not meant to be legal or professional advice nor should it be used as a substitute for such advice. You should seek legal advice for your specific circumstances before relying on any information herein. Contact JS Mueller & Co for any required legal assistance.
JS Mueller & Co Lawyers has been servicing the strata industry across metropolitan and regional NSW for over 40 years. We are a specialist firm of strata lawyers with in depth and unmatched experience in, and comprehensive knowledge of strata law and levy collection.
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This article has been republished with permission from the author and first appeared on the JS Mueller & Co Lawyers website.
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I have recently seen a copy of a email from a Strata Management stating an amended bylaw to an owner to enforce a law , this bylaw does not exist and never has . And the caretakers and cleaners are telling owners to do as this bylaw states . It is totally fake and not true .what can be done ?
In 2017 my the strata manager and its lawyer asserted that the Privacy Act when it prevented me from inspecting strata records which contained “private” information (aka email addresses). I successfully obtained orders that required them to provide copies of “any and all strata records” excluding those which are privileged [2019] WASCA 190.. The cost of responding to the application and partially satisfying the orders was in excess of $115,000. Despite this the same strata management company has continued to withheld communications which existed at the time between the strata manager and members of the council or other owners and refused to advise past members of the council that the orders require them to make available for inspection strata records which were not provided to the strata manager.
This strata manager, like many other members of SCA WA, need to be properly educated and actively discouraged from denying access to records (including the strata roll) “unless a court order is obtained”.