Ravenhill [2007] QBCCMCmr 75 (12 February 2007)

Number of Scheme:	7424
Name of Scheme:	Ravenhill
Address of Scheme:	103 - 105 King Street BUDERIM QUEENSLAND 4556

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

I hereby order that the Body Corporate for Ravenhill shall provide the applicant, Christine Johnson, with a copy of the Body Corporate Roll within seven (7) days of the date of this order, at no charge to the applicant.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 1070-2006

"Ravenhill" CTS 7424

Ravenhill community titles scheme (Ravenhill) consists of 9 lots and common property. The community management statement for Mercantile-Dalgety Place indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module) applies to the scheme. Department of Natural Resources and Water records show the scheme is registered as Building Units Plan 7842.

APPLICATION

Pursuant to the Body Corporate and Community Management Act 1997 (Act), this application was made by Christine Johnson, owner of Lot 9 (applicant) on 19 December 2006. The applicant sought the following order against the Body Corporate for Ravenhill (respondent): I wish to obtain a copy of the Ravenhill Body Corporate Roll and pay the prescribed fee.

PROCEDURAL MATTERS

In January 2007 the Commissioner’s Office attempted to organise a conciliation session to assist in the resolution of this dispute. Unfortunately all parties did not agree to conciliation.

Under section 243 of the Act, a copy of the application was provided to the Body Corporate, with an invitation to the Committee and Select Strata Management, the Body Corporate Manager (BCM), to respond to the matters raised in the application. A submission was received from the BCM on behalf of the Committee. The applicant did not avail herself of the opportunity to inspect the submission or make a written reply.^[1]

A dispute resolution recommendation was made referring the dispute to departmental adjudication.

MATTERS IN DISPUTE

The application relates to access to Body Corporate records by the applicant. The facts of the dispute, as outlined in the application and submission, can be summarised as follows.

The applicant says she wishes to obtain a copy of the Body Corporate Roll to enable her to contact other lot owners to canvas support for a meeting to consider urgent repairs to a dividing fence.

The applicant wrote to the BCM on 13 December 2006 requesting a copy of the Roll and details of the cost of obtaining the document. On 14 December 2006 she received a response that the Roll could not be provided because of the scheme’s "privacy policy". The applicant replied the same day the Roll is a public record not covered by privacy legislation, and detailed the requirements under the Act to provide access to records and also referred the BCM to the Commissioner’s Office for information and previous determinations on the matter. The BCM responded that they are fully aware of their obligations and again referred the applicant to the scheme’s privacy policy which is provided to all lot owners as part of a ‘welcome pack’ and specified that personal information is not given out. The BCM stated that the only information able to be given out is the Information Certificate which is commonly obtained by prospective purchasers. The response also indicated that as a Committee member the applicant can view other owner details on the Stratamax website that contains password accessible information for this scheme.

The submission received states the applicant has been advised that personal contact information cannot be provided but has been given alternative means to obtain the information required.

JURISDICTION

I am satisfied that this is a matter which falls within the dispute resolution provisions of the legislation (see sections 227, 228, 276 and Schedule 5 of the Act).

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about:

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under the Act or the community management statement; or

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

DETERMINATION

The issue here is whether the applicant is entitled to a copy of the Body Corporate Roll.

Applicable law

Section 205 of the Act provides as follows in regard to access to records:

(1) This section provides for the giving of information by the body corporate for a community titles scheme from the body corporate’s records.

(2) 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--

(3) However, the body corporate is not required to allow a person to inspect or obtain a copy of a part of a record under subsection (2) if the body corporate reasonably believes the part contains defamatory material.

(4) The body corporate must, 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, issue a certificate (a body corporate information certificate) in the approved form giving financial and other information about the lot.

(5) A person who obtains a certificate under subsection (4) may rely on the certificate against the body corporate as conclusive evidence of matters stated in the certificate, other than to the extent to which the certificate contains an error that is reasonably apparent.

(c) another person who satisfies the body corporate of a proper interest in the information sought; or

(d) the agent of a person mentioned in paragraph (a), (b) or (c).

Section 151 of the Standard Module prescribes the relevant fees for inspecting ($11 for lot owners) and obtaining copies of records (50 cents per page supplied) and the fee to obtain an information certificate ($43.50 plus $16.50 priority fee if the certificate is required within 24 hours and $10.90 if the certificate is required to be faxed).

This section makes it clear that all owners are entitled to obtain copies of any Body Corporate, within seven days of receiving written request and a fee. Contrary to the opinion of the BCM, this right extends far beyond the mere provision of an Information Certificate under section 205(4).

Moreover, the applicant is a committee member. Section 150 of the Standard Module provides as follows that committee members are entitled to ‘reasonable access’ to records without payment of a fee. There can be nothing in a Roll that could be defamatory or could be viewed as privileged, and so it should be a matter of course that the Roll should be provided to the applicant on request.

(1) The body corporate must allow all members of its committee reasonable access (without payment of a fee) to the body corporate’s records.

(2) However, the body corporate is not required to allow a person access to records under this section if a legal proceeding between the body corporate and the person has started or is threatened and the records are privileged from disclosure.

(3) Also, the body corporate is not required to allow a person access to a part of a record under this section if the body corporate reasonably believes the part contains defamatory material.

I note also that section 55 of the Standard Module requires that the Roll and other relevant information must be made available by the secretary for inspection by voters at all general meetings, which further confirms that the Roll is a public document within the context of the scheme.

Privacy issues

The BCM seeks to rely on the existence of a ‘privacy policy’ to prevent access to the Roll. However neither the Body Corporate nor the BCM have the power to make a ‘policy’ which overrides the requirements of the body corporate legislation, regardless of whether they have communicated this policy to owners or not.

I am aware that some Body Corporate’s suffer under the unfortunate misapprehension that ‘personal’ information is restricted from disclosure from the Privacy Act 1988 (Cwth). It is not the role of this Office to administer the Commonwealth privacy legislation and any queries regarding this legislation should be directed to the Office of the Federal Privacy Commissioner. However I note that section 3 of the Privacy Act 1988 provides that "It is the intention of the Parliament that this Act is not to affect the operation of a law of a State or of a Territory that makes provision with respect to the collection, holding, use, correction, disclosure, or transfer of personal information (including such a law relating to credit reporting or the use of information held in connection with credit reporting) and is capable of operating concurrently with this Act." I also note that Information Privacy Principle 2.1(g) of the National Privacy Principles provides that an organisation must not use or disclose personal information about an individual for a purpose other than the primary purpose of collection "unless the use or disclosure is required or authorised by or under law".

The disclosure of any body corporate records to owners is clearly authorised by law – specifically section 205 of the Act. Accordingly, I see no reason why the disclosure of Body Corporate records including the Roll is inconsistent with the provisions of the Commonwealth privacy legislation.^[2]

I am curious as to why the BCM claims there is an objection to the release of personal information when at the same time referring the applicant to the accessibility of the same information on a website. It is hard to see why the Body Corporate would refuse to give information which it knows is already available. Fundamentally, on the basis of the discussion outlined above, I consider that the Body Corporate is required to provide copies of Body Corporate records on request regardless of whether the applicant could obtain the same information in some form from a website.

Conclusion

It is unfortunate that, contrary to her claims in her email of 14 December 2006, the BCM is obviously not aware of the Body Corporate’s legislative obligations regarding access to body corporate records. It is clear that the applicant is entitled to access to any existing records of the Body Corporate including the Roll. Accordingly I have ordered such information be provided to the applicant. As the applicant is a committee member she is not required to pay a fee for this access.

^[2] Numerous previous adjudications have reached the same conclusion, including for example Jadon Place (0216-2003), 6 June 2003

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Ravenhill [2007] QBCCMCmr 75 (12 February 2007)