Owners Corporations Case law update- The Saint-John Decision- Lot owners have a right to emails and phone numbers!
Recently we wrote a blog about a lot owners right to access all of the lot owners emails and phone numbers. That blog can be found here.
The Saint-John Decision has just been released which confirms that an Owners Corporation has the legal obligation to provide a lot owner all emails and phone numbers of lot owners upon request, subject to the lot owner paying for a reasonable fee set in accordance with section 146(2) of the OC Act and r.12 of the Regulations.
Of course, an Owners Corporation does not need to charge a fee if they decide not to but they must provide the records upon request.
The VCAT decision will be welcome news for lot owners who struggle to get the contact details of their fellow owners.
Regulation 11A now confirms that emails and phone numbers are part of an Owners Corporations records and not the property of an Owners Corporation manager.
The case now provides certainty that an Owners Corporation must provide such records to lot owners on request or face being in breach of their statutory obligations.
So what is the case?
The case is Saint-John v Owners Corporation PS631843C (Owners Corporations) [2024] VCAT 1026.
What is it about?
The case is about a lot owner who sought the phone numbers and emails of lot owners and fire safety reports.
The respondent had refused to provide the applicant, who asserts a right to copy the Records for a fee, access to the Records on the basis that it only has a legal obligation to provide access to its records as listed in s144 of the OC Act and not any other records it may keep, including those records listed in the Regulations at regulation 11A.
The Tribunal found “that s146 of the OC Act, when read with regulations 11A and 12, clearly differentiates between:
(i) those documents listed in s144 of the OC Act, for which a lot owner (amongst others) “may inspect, at any reasonable time, free of charge” (see s146(1) of the OC Act), noting that the section is limited by the Division (i.e. Part 9, Division 1, s144 of the OC Act); and
(ii) the balance of the “record(s) of the Owners Corporation” (including those provided for under s144 of the OC Act ) for which a lot owner (and others) may receive a copy of by way of a payment of a reasonable fee, the definition of “records of the Owners Corporation” clearly extending (“additional” per r11A) to those matters provided for in r11A of the Regulations (r11A(1) extending to telephone number and email address (if any), the subject of the dispute)).”
In conclusion, the Tribunal found “given that the common property in a plan of subdivision is collectively owned by the lot owners as tenants-in-common, it is entirely consistent and logical that there is, in the OC Act, a presumption in favour of access to any record of the Owners Corporation for the persons identified in s146(1) of the OC Act via the copying of any record of the Owners Corporation for a fee (s146(2)) under the proviso that a person can apply to VCAT for orders restricting access to personal information kept in the records of the Owners Corporation (s172(1)) which VCAT may order if it considers that exceptional circumstances exist (s172(2)).”
But what if a lot owner does not want to disclose their details?
A lot owner has two options:
- Don’t give the email or phone number to the OC. However most notices are provided by email and it is not very practical as soon as a lot owner emails the OC they have the email address forever: or
- Make an application to VCAT to prevent release. Section 172 of the OC Act provides:
(1) A person whose name or other personal information is kept in the records of the Owners Corporation or on the Owners Corporation register may apply to VCAT for an order restricting access to that information.
(2) VCAT may, if it considers that exceptional circumstances exist, by order direct the Owners Corporation not to allow access to information about a person held in the Owners Corporation records or on the Owners Corporation register for the period specified in the order.
(3) An order under this section may specify conditions, including conditions specifying the persons who are not to have access to the information.
So what fee can the OC charge?
Regulation 12 of the Regulations provides:
For the purposes of section 146(3) of the Act, the prescribed maximum fee for a copy of any record of an Owners Corporation is the total of—
(a) in respect of the first record requested at any one time—
(i) 1·15 fee units; and
(ii) if a printed copy of the electronically provided record is also requested, 20 cents per page; and
(b) in respect of each additional record provided in relation to the same request—
(i) $7.60; and
(ii) if a printed copy of any additional record electronically provided is also requested, 20 cents per page.
Summing up
Managers and OC’s can no longer prevent a lot owner from accessing lot owners emails and phone numbers. This is a win for open transparent communication between all lot owners.
Need advice or assistance in a VCAT case?
Contact Phillip Leaman who heads the Owners Corporations team at Tisher Liner FC Law. We have extensive experience in assisting Owners Corporations in prosecuting and defending VCAT applications and providing advice concerning the operation of the Owners Corporations Act 2006.
Disclaimer
The above does not constitute legal advice, but is information which may be of general interest. Tisher Liner FC Law will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.