Who knows your financial information? Privacy as part of an owners corporation

Worried about who can access your financial information?

On 16 September 2020, the case of Walker v The Owners – Strata Plan No. 1992 [2020] NSWCATAP 192 was determined by the NCAT Appeal Panel. This case involved a lot owner seeking access to certain financial records for levies paid from 2018 to date.

The lot owner had specifically sought a detailed transaction listing for levies paid by each lot owner as he had suspicions that there had been unauthorised credits applied. The owners corporation had already provided Mr Walker with the audited accounts showing the total of levies due, a record of levy positions for each lot showing levied for each lot, whether there were arrears and whether any interest was due or had been paid.

The NCAT had dismissed the case at first instance on the basis that:

  • Mr Walker was not entitled to the further information as it was not part of the financial information required to be provided under section 93 of the Strata Schemes Management  Act 2015,
  • the documents provided were enough to satisfy Mr Walkers enquiries,
  • there was no evidence to suggest the owners corporation had wrongfully refused to provide the documents, and
  • it was a “matter of privacy for all lot owners”.

In the appeal the owners corporation argued that the lot owner was not entitled to the more detailed transactions list as it would intrude into the right to privacy of the lot owners and that the documents requested were documents that the lot owner had no right to inspect. (In a previous blog “Who knows where you live? Privacy as part of an owners corporation” I discussed what information must be made available to all lot owners.)

The Appeal Panel decision

The Appeal Panel found that the NCAT had misdirected itself when considering if the sought-after documents were those required to be provided under s93 of the Act and then considered what information the owners corporation is required to retain under s180 of the Act and what it is required to provide upon a request for inspection under s182 of the Act. Importantly, for the appeal one category of documents that had to be made available for inspection was a “levy register”. The Strata Schemes Management Regulations set out what a levy register had to include (spoiler alert: it included a separate section for each lot with details of levies and each credit and debit on that lot’s ledger). The Appeal Panel held that this information was required by s182 to be made available following a formal inspection request and a question of privacy did not arise due to the statutory right to access the information.

What are the implications?

This decision follows the Consumer, Trade and Tenancy Tribunal’s previous reasoning in Legge v Network Strata Services Pty Ltd (SCS) [2013] NSWCTTT45 which was the subject of my blog:  https://allisonbensonau.com/2014/07/02/who-knows-where-you-live-privacy-as-part-of-an-owners-corporation/

When you live in a strata scheme, provided a formal request is made under section 182 of the Act, a right to privacy argument will likely not succeed if the information is required to be provided under the Act. The information required to be made available is:

(a) the strata roll,

(b) any other records or documents required to be kept under this Part,

(c) the plans, specifications, certificates, diagrams and other documents required to be delivered to the owners corporation before its first annual general meeting by the original owner or the lessor of a leasehold strata scheme,

(d) if in its custody or under its control, the certificate of title comprising the common property or, in the case of a leasehold strata scheme, the certificate of title for the lease of the common property,

(e) any applicable 10-year capital works fund plan,

(f) the last financial statements prepared,

(g) every current policy of insurance taken out by the owners corporation and the receipt for the premium last paid for each such policy,

(h) if a strata managing agent has been appointed, a copy of the instrument of appointment,

(i) if a strata renewal plan has been given to owners for their consideration under Part 10 of the Strata Schemes Development Act 2015 , a copy of the plan,

(j) any other record or document in the custody or under the control of the owners corporation.

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