28 May Adjudicators Order: Denying Access to Records – Can this be done?
Adjudicators Order: Denying Access to Records – Can this be done?
For the sake of this article, we will refer to the Body Corporate and Community Management Act 1997 as “BCCM Act” & we will reference sections of the Body Corporate and Community Management (Standard Module) Regulation 2008. If your scheme is registered under the Accommodation, Commercial or Small Scheme Module – these regulation modules can be found on the website of the Office of the Commissioner for Body Corporate – https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/legislation-and-bccm/legislation
Section 205(2) of the BCCM Act states:
“within 7 days after receiving a written request from an interested person accompanied by the fee prescribed under the regulation module applying to the scheme, the body corporate must do either or both of the following as requested by the interested person –
- Permit the person to inspect the body corporate’s records;
- Give the person a copy of a record kept by the body corporate”.
Section 205(3) of the BCCM Act states:
“However, the body corporate is not required to allow a person to inspect or obtain a copy of part of a record under subsection (2) if the body corporate reasonably believes the part contains defamatory material”
A very quick definition of an “interested person” under the BCCM Act includes:
- The owner, or a mortgagee, of a lot included in the scheme; or
- The buyer of a lot included in the scheme; or
- Another person who satisfies the body corporate of a proper interest in the information sought; or
- The agent of a person mentioned in paragraph (1), (2) or (3).
In the Adjudicators Order selected this month, the applicant – the co-owner of one of the units – was seeking an order that the respondent – the Body Corporate – provide copies of records requested in accordance with the legislation, which included legal advice in relation to the scheme.
With regard to the legal advice, the applicant considered that this had been withheld based on a claim for legal professional privilege but the Adjudicator noted that no claim of privilege was made in the respondents submission or the relevant correspondence and as such – the Adjudicator, as part of the final order, that within 14 days of this order being made, the respondent is to provide to the applicant a copy of any written legal advice referred to in a letter circulated to all owners unless the respondent has legal advice that it may claim legal professional privilege over it.
With the remainder of the application, the Adjudicator found that there were no reasonable grounds for the body corporate to have withheld the records that were requested however due to the advice that the request for certain records was not clear, the order made by the Adjudicator was adjusted for the owner to have access to all records, subject to exclusions for defamatory material and privilege.
A full copy of the order can be read: http://www7.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2019/230.html and further information on Accessing Records can be found by visiting the Office of the Commissioner for Body Corporate website – https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/records/access-records