No Privacy in Strata Records
Article written by Carlo Fini – from Lewis & Charles Lawyers.
NCAT’s Appeal Panel has recently confirmed there is no privacy in the strata records an owners corporation must keep. An owners corporation and its strata manager must allow a person to inspect strata records that otherwise may be considered private or the personal information of another person.
In Walker v The Owners – Strata Plan No 1992 [2020] NSWCATAP 192, the applicant lot owner Mr Walker sought access to the levy register for each lot. The strata manager (on the owners corporation’s behalf) declined to provide this on the basis that it was only obliged to provide those documents specifically set out in section 93 of the Strata Schemes Management Act 2015, and not the background documents (eg levy register) used by it to produce section 93 documents. At first instance, NCAT agreed and dismissed Mr Walker’s application. He successfully appealed to NCAT’s Appeal Panel.
The strata manager objected to providing the records in part on the basis that to do so would infringe the privacy of lot owners. While the NCAT member at first instance accepted that argument, the NCAT Appeal Panel rejected it and said that privacy does not derogate from the strata manager’s obligation to provide access to documents.
The strata manager also objected to providing the levy register because it said that the financial statements presented as part of the annual general meeting papers contained sufficient information about levies paid. The Appeal Panel rejected this argument too.
Mr Walker sought access to the levy register which is a document expressly referred to in clause 23 of the Strata Schemes Management Regulation 2016. Clause 42 of the Regulation requires an owners corporation to keep and make available records including the levy register. Unusually, the NCAT member at first instance did not refer to these clauses of the Regulation however the Appeal Panel decided that was an error, and that the clauses meant the strata manager should have provided the levy register for each lot to Mr Walker. Accordingly, the Appeal Panel ordered the owners corporation to provide them to Mr Walker.
While NCAT has a discretion to refuse to make an order even if grounds for making the order are established, the Appeal Panel held that privacy was not a factor to decline to make the order because Parliament intended that the Act and the Regulation derogate from privacy.
This decision is in line with an earlier CTTT decision in 2013, Legge v Network Strata Services Pty Ltd (Strata and Community Schemes) [2013] NSWCTTT 45, that held that privacy legislation does not apply to strata records and that a strata manager must give access to the strata roll and the contact details in it as part of a strata search.