Wallace Hill Apartments [2007] QBCCMCmr 418 (16 July 2007)

Last Updated: 27 July 2007

REFERENCE: 0457-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	31905
Name of Scheme:	Wallace Hill Apartments
Address of Scheme:	113 Wallace Street, Chermside Queensland

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Stewart Homan, a co-owner of Lot 6

I hereby order that the body corporate for Wallace Hill Apartments community titles scheme 31905 must immediately provide (without requiring the payment of a fee) Stewart Homan with a complete copy of the Body Corporate roll of lots and entitlements prepared and kept as required by section 143 of the Body Corporate and Community Management (Standard Module) Regulation 1997.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0457-2007

"Wallace Hill Apartments" CTS 31905

Application
This application is by Stewart Homan, a co-owner of Lot 6 (applicant) seeking an outcome that the body corporate provide him with a copy of the roll.

Jurisdiction
"Wallace Hill Apartments" is a community titles scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement (section 276(1), Act). An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2), Act).

Procedural matters
On 5 June 2007, a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicant), with an invitation to respond to the matters raised in the application. Submissions were made on behalf of the owner of Lot 2.

A dispute resolution recommendation has been made referring the dispute to departmental adjudication.

Submissions
The applicant states that on several occasions, he has requested access to the roll and has been refused. The applicant provided a copy of his most recent request and the reply from the body corporate manager. In this request dated 22 May 2007, the applicant mentioned a previous response from AD Body Corporate Managers and Consultants (AD BCM) that it was their policy not to release the roll to owners. The response from Jamaica Blardony of AD BCM of the same date referred to section 205 of the Act and stated that there is a Privacy Policy to be adhered to.

Danny and Ros Hollis submitted that the applicant has grounds to be provided with the roll as he is the only active member of the body corporate.

Determination
Section 204 of the Act provides that a body corporate must give access to rolls, registers and other documents in the way provided for in the regulation module. Section 150(1) of the Standard Module provides The body corporate must allow all members of its committee reasonable access (without payment of a fee) to the body corporate’s records. Section 205 of the Act provides for the giving of information by the body corporate from its records and makes provision for persons such as lot owners being able to inspect body corporate records or being given a copy of a record kept by the body corporate. Section 143 of the Standard Module provides that a body corporate must keep a roll containing information such the name, residential or business address and the address for service of the current owner of each lot included in the scheme.

The applicant has demonstrated that he has requested a copy of the body corporate roll and that he has been denied access. It is apparent that AD BCM has refused to provide a copy of the roll to the applicant as it would be contrary to a privacy policy which may or may not be developed based on the Privacy Act. The legislated disclosure provisions prevail over a privacy policy which may have been developed by AD BCM, and a body corporate cannot decide to adopt a privacy policy which is contrary to the Act. AD BCM should also note that the National Privacy Principles allow disclosure which is required or authorised by or under law.^[1]

The body corporate roll is part of the records of the body corporate. The applicant is an owner and is entitled to inspect or to obtain a copy of the roll under section 205 of the Act. In addition, as the applicant is a committee member, he is entitled to access without the payment of a fee.

I am satisfied that the applicant has requested access to the body corporate roll and that the only reason for denying access is the inappropriate use of a privacy policy. In the circumstances, the applicant is entitled to access to a copy of the roll.

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^[1] Privacy Act 1988, National Privacy Principles, 2.1(g).