If a Body Corporate believes that certain records are subject to "legal privilege" then they have the right to refuse access to any owner who may be involved in either actual or threatened legal action against the Body Corporate or presumably anyone who claims to be affected by the records.
There are times when it might be prudent to withhold certain documents from an owner on the basis of legal privilege but anyone with an ounce of imagination should be able to see how this ruling could be abused.
It would be very easy for a Committee to deny access to Body Corporate records based on "legal privilege". The owner would then have to decide whether to lodge a dispute. If the records were needed urgently, the process of waiting for the dispute to be heard could prove costly for the owner.
An Adjudicator recently ruled that a dispute with QCAT constitutes legal action. Presumably any dispute that has been initiated or implied also comes under the banner of "legal privilege".
There are other considerations that could lead to abuse of this process. Who decides whether records are subject to legal privilege or not? What if the person who is actually seeking the records is the Chairman, Secretary or another Committee member?
There have been disputes between the Body Corporate and the Body Corporate Manager in the past. The Body Corporate Manager is the custodian of the records. What would happen if the Body Corporate decided that the Body Corporate Manager could not access records because of legal privilege?
I feel that all Body Corporate records should be available for access by owners irrespective of any implied or actual legal privilege.
The opinions expressed in this article are personal commentaries and not intended in to be legal advice in any way. I have spent many years participating on a number of different Body Corporate Committees and provide an owner's perspective on Body Corporate issues.
If you have any concerns or comments about any of the issues that are raised in these articles please use the form below to contact me.
I am the owner of http://www.moviemem.com/