The Meadows [2008] QBCCMCmr 21 (21 January 2008)

Last Updated: 1 March 2008

REFERENCE: 0883-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20691
Name of Scheme:	The Meadows
Address of Scheme:	154 Currumbin Creek Rd CURRUMBIN WATERS QLD 4223

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

Ellen Strahan, the Owner(s) of lot 22

I hereby order that the body corporate for The Meadows must make its books and records available for inspection by Ellen Strahan, and her agent Logan Irwin, at the offices of Queensland Strata Administration, Suite 7, 94 Bundall Road, Bundall. The time of the inspection is to be within the next month, at a time within normal business hours as specified by Ellen Strahan in writing and given to the body corporate with at least seven days notice. I further order that: The body corporate must ensure that all body corporate records are presented at the inspection in an orderly manner. Further, that if the body corporate wishes to withhold any parts of records (possibly privileged records) from the applicant then the body corporate must engage a solicitor to review those possibly privileged records and the solicitor must individually identify any parts of records reasonably believed to be defamatory to the applicant or otherwise privileged (privileged parts). Only those privileged parts that are individually identified in a letter to the applicant from the body corporate's solicitor are to be withheld from the applicant at the inspection. The body corporate must ensure that the inspection is not unreasonably disrupted or terminated by persons acting with the authority of the body corporate or the committee. The applicant and her agent must conduct the inspection in a calm and orderly manner and within a reasonable time period. The body corporate must ensure that the applicant and her agent are entitled to attend the inspection free of charge. However, if the applicant or her agent request copies of records then the body corporate must ensure that these records are provided at the inspection, or within two business days of the inspection, upon payment of a fee of 50c per page. I further order that the application is otherwise dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0883-2007

“The Meadows” CTS 20691

Application

The Meadows Community Titles Scheme (The Meadows) is a 63 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

This application is by Ellen Strahan, owner of lot 22 (applicant) seeking orders against the body corporate (respondent). The applicant is seeking an order that the body corporate instruct its body corporate manager to allow the applicant to inspect the body corporate records.

Decision

Investigation and Submissions

Submissions

The main grounds in support of the application, provided on behalf of the applicant were to the effect that she is eighty years old, has recently had eye surgery, but has been refused access to the records with her elected agent, Logan Irwin. It is also submitted that upon previous inspections of the records she has been refused access to most of the records and harassed by committee members who have been present.

Submissions were provided by the body corporate manager on behalf of the committee. These were to the effect that the applicant's nominated agent, Logan Irwin, has attended meetings for the sole purpose of causing disruptions and that the committee has written to the applicant telling her that she can inspect the records with anyone other than Logan Irwin.

The applicant has responded to the effect that Logan Irwin has attended only the 2007 annual general meeting and conducted himself in a gentlemanly manner despite being harassed.

Issues for determination

Applicable law

The legislation includes provisions to the effect that:

• Within 7 days after receiving a written request from an interested person accompanied by the prescribed fee, the body corporate must permit the person to inspect the body corporate's records or give the person a copy of records as requested by the interested person. An interested person is an owner, buyer, another person who satisfied the body corporate of a proper interest, or the agent of any of these persons (Act, 205);
• The body corporate is not required to allow a person to inspect or copy part of a records if the body corporate reasonably believes the part contains defamatory material (Act, 205(3));
• The prescribed fee is $11.40 if the person inspecting the records is a lot owner or $22.70 otherwise. The prescribed fee for obtain a copy of a records is 50c per page (Standard Module, 151).

Right to inspect records

The Act gives all owners the right to access body corporate records within seven days of receipt of a written request and the prescribed fee. There is no legislative limit on the scope and content of records that may be accessed (except that access to parts of records defamatory to the person inspecting can be restricted and the Act does not specifically abrogate common law privilege). This right of access exists regardless of the motive of the person seeking access or the use to which they will put the records.

Further, when construed according it its ordinary meaning, the legislation allows the agent of an owner to inspect the records. In this case, I am satisfied that the applicant feels incapable of inspecting the records alone and has appointed Logan Irwin as her agent for this purpose.

I therefore conclude that both the applicant and Logan Irwin are legally entitled to inspect the body corporate records for The Meadows.

Conditions of inspection

I am satisfied from the correspondence provided by the applicant that the body corporate has been obstructing the applicant from inspecting the records contrary to the legislation. This has resulted in the applicant needing to go to the expense and inconvenience of lodging this application. On a just and equitable basis, I will therefore order that the body corporate must ensure the applicant and her agent can inspect the records free of charge.

The applicant has also sought that the inspection be performed in a non adversarial environment with no audio taping of the inspection and without the committee members being present. I am not satisfied it is appropriate to make these orders. Committee members may legitimately wish to be present to verify records are made available in an organised way and are not interfered with Further, particularly if there have been disagreements between the parties in the past, the body corporate may wish to record the inspection to discourage any verbal harassment. Similarly, the applicant may wish to make her own audio recording to discourage any verbal harassment from committee members.

Having said this, it seems appropriate that I make some orders regarding the conduct of the inspection to endeavour to avoid problems that appear to have arisen in the past. So that all appropriate records are made available to the applicant and her agent I will order that the body corporate must ensure body corporate records are presented at the inspection in an orderly manner and that the only parts of records to be withheld are those parts of records that have been individually identified in a letter from the body corporate's solicitor as being defamatory to the applicant or otherwise privileged.

I will further order that the body corporate must ensure that the inspection is not unreasonably disrupted or terminated by persons acting with the authority of the body corporate or the committee and that the applicant and her agent must conduct the inspection in a calm and orderly manner and within a reasonable time. Finally, if the applicant or her agent request copies of records then the body corporate must ensure that these records are provided at the inspection or within two business days of the inspection upon payment of a fee of 50c per page.

Order

For these reasons, I make the order above.