The key terms we will be using for the purpose of this article are:
- Davidson v the Owners – Units Plan No 1475 & Anor  ACAT 76 (Original Decision)
- The Owners Units Plan No 1475 v Davidson & Anor  ACAT 10 (Appeal Decision) (Decisions)
- The Australian Capital Territory Civil and Administrative Tribunal (Tribunal)
- Unit Titles (Management) Act 2011 (ACT) (UTMA).
Both the Original Decision and the Appeal Decision saw the Tribunal consider the circumstances in which the owner of a unit was able to inspect the corporate register of the owners corporation in the ACT pursuant to the UTMA.
BACKGROUND TO PROCEEDINGS
Ms Davidson was a member of the Owners Corporation for Units Plan No 1475 (OC).
On 7 May 2021, Ms Davidson lodged an application seeking orders for the review of the decision made by the Executive Committee of the OC (EC), regarding a reimbursement for the replacement of the windows in her unit.
During these proceedings, on 15 June 2021, Ms Davidson filed an interim application for access to the corporate register of the OC, which had been previously refused to her. Ms Davidson said that she sought this access in order to write to the other owners in relation to a forthcoming general meeting.
The interim application was the subject of the Decisions.
Part 7 of the UTMA deals with the corporate register of an owners corporation and comprises sections 113 to 124 of the UTMA.
Section 113(1) of the UTMA requires the owners corporation of a units plan to establish and maintain a corporate register including particular information.
Section 114(1) requires that for each unit in a units plan, the corporate register must minimally record the name and addresses of unit owners.
The Original Tribunal and Appeal Tribunal considered sections 116 and 119 of the UTMA, which deal with access to the corporate register and the owners corporations records, respectively.
Section 116 of the UTMA relevantly provides that:
- On request by an eligible person for a unit or the common property, the owners corporation for the units plan must allow the person, within 14 days after the request is received, to inspect, and take a copy of—
- For a request by an eligible person for a unit—the information on the corporate register about the unit and any easements with which the common property is benefited or burdened; or
- For a request by an eligible person for the common property – the information about any easements with which the common property is benefited or burdened.
- On request by an applicant for a court order under this Act, the owners corporation must allow the applicant to inspect, and take a copy of, the names and addresses for correspondence recorded on the corporate register of each unit owner and anyone else with an interest in a unit, or the common property, that is recorded on the register.
This is to enable the applicant for the order to comply with the requirements for service under this Act.
Section 119 of the UTMA relevantly provides that:
- On request by an eligible person for a unit or the common property to inspect the records of an owners corporation, the corporation must, within 14 days after the day the request is received, allow the person—
- To inspect—
- The information on the corporate register; and
- Any other records held by the corporation; and
- To take copies of any document inspected.
- To inspect—
The Dictionary of the UTMA relevantly provides an ‘eligible person’:
- For a unit or common property in relation to which access to information is required, means:
- The owner [of the unit], or the person with an interest in the unit, or in an easement over the common property.
The Original Tribunal held that section 119 of the UTMA allowed Ms Davidson to access the corporate register and made an order that the OC provide Ms Davidson with access to the register.
In the Original Decision, the Original Tribunal referred to concepts under the Privacy Act 1988 (Cth) (Privacy Act) that were touched on by the OC’s representatives during a discussion regarding owners who would not want their information shared. Ultimately, the Tribunal found that section 119 was capable of operating alongside the Privacy Act.
While section 116 of the UTMA was referred to in the Original Decision, it was done only in the context of submissions made by the OC, and the Original Tribunal did not make a finding of whether Ms Davidson would have been able to access the Corporate Register pursuant to that section.
On 22 July 2021, the OC lodged an application for an appeal.
The Appeal Decision was handed down on 8 February 2022, with the Appeal Tribunal making, among other orders, an order setting aside the order made by the Original Tribunal.
The OC’s application contained eight grounds for appeal. Ultimately, the OC was only successful on the grounds that the Original Tribunal had made an error of law by:
Holding that section 119 of the UTMA conferred on [Ms Davidson] a right to access information in relation to a unit in which [Ms Davidson] did not own or have an interest in.
In relation to this ground, the OC submitted that Part 7 of the UTMA set out a detailed scheme by which a person may access the corporate register and that it does not provide a right for any person in proceedings against an owners corporation to be provided with unqualified access to the register.
The Appeal Tribunal found that while section 119(4) of the UTMA appeared on its face to give Ms Davidson access to the corporate register, a contrary interpretation was apparent when this section was considered in the context of the scheme for access to the corporate register set out in Part 7 of the UTMA as a whole. In this context, the words ‘eligible person’ appearing in section 119(4) limited the information that an owner may obtain from the corporate register to the information relating to their unit or the common property.
Consequently, Ms Davidson was not permitted to access the contact details of the other owners.
The Appeal Tribunal noted that the Original Tribunal’s decision was not unreasonable, as it flowed from the text of section 119 as presently drafted and, for this reason, recommended that the Attorney-General consider redrafting Part 7 of the UTMA.
The Appeal Decision makes it clear that section 119 of the UTMA does not confer owners with an unrestricted right to access to the records of the owners corporation.
Since the corporate register is required to minimally record the names and addresses of owners, limited access to the register protects the privacy of those owners.
Following the Appeal Decision, the information of owners held on the corporate register that is accessible to a given owner is extremely limited. The UTMA only expressly allows a person to access the names and addresses of ordinary owners held on the register in circumstances where a request is made by an applicant for a Court order under the UTMA, pursuant to section 116(2).
Since the Appeal Decision was handed down there has been no bill for the amendment of the UTMA before the ACT Legislative Assembly. It is possible that Part 7 may be amended to provide further clarity of the circumstances in which particular information held on the corporate register may be accessed.
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