On 8 February 2022 the ACAT Appeal Tribunal handed down it’s long awaited decision on the issue of providing the corporate register to a lot owner pursuant to section 119 of the Unit Titles (Management) Act 2011 (the UTMA). Kerin Benson Lawyers acted for the successful appellant OC.
On 7 May 2021, Ms Davidson, the original applicant lodged an application seeking orders to review a decision of an executive committee in relation to reimbursement for replacement windows in her unit. It was in the course of these proceedings (the Original Proceedings) that the applicant filed an interim application on 15 June 2021 seeking access to the corporate register (Interim Application). It was the determination of that Interim Application on 20 July 2021 that was the subject of the appeal.
On 9 June 2021 the first directions hearing in the Original Proceedings was held before a Presidential Member of the tribunal (First Directions Hearing). At the First Directions Hearing, Ms Davidson raised concerns that the OC, through its strata manager, was refusing her access to the corporate register. Ms Davidson said that she wanted access so she could write to the owners in relation to an upcoming general meeting. She stated during the First Directions Hearing that she had made a request in writing as required by the UTMA, but the request had been refused.
During the First Directions Hearing the strata manager confirmed that access had been denied based on legal advice that the OC had received. The Presidential Member discussed the relevant sections of the UTMA with the parties and suggested that the OC take further legal advice and liaise with the applicant about her outstanding request. If the issue remained unresolved, the Presidential Member said that the applicant could “apply to the ACAT to seek orders for access, as a part of the current application”.
On 15 June 2021, the applicant lodged the Interim Application – that is, an application for interim or other orders, seeking urgent orders for access to the corporate register.
On 20 July 2021, the Presidential Member heard the application for interim orders and ordered that the OC give to the applicant access to the Corporate Register in accordance with section 119 of the UTMA forthwith.
The OC initially lodged an appeal on 22 July 2021 and filed an amended application for appeal on 26 August 2021.
The appeal was heard on 21 October 2021 during which the appellant alleged several errors of fact and law including failures of procedural fairness and errors in the interpretation of provisions of the UTMA. The Appeal Tribunal ultimately concluded that the appellant did not demonstrate that any of the grounds of appeal other than Ground 8 constituted errors which would affect the result of the first instance proceedings. Ground 8 concerned the interpretation of Part 7 of the UTMA (particularly section 119) and the definition of ‘eligible person’ in the Dictionary of the UTMA. On the Appeal Tribunal’s preferred construction of these provisions, the order to provide access to the corporate register was in error and set aside. The appeal was therefore upheld.
In discerning whether an error of law had occurred, the Appeal Tribunal had to interpret section 119(4) in the context of the UTMA, particularly Part 7 of the UTMA. In essence, the Tribunal had to consider text, context and purpose when interpreting the relevant provisions.
When considering the text of section 119(4), it appeared to give the first respondent carte blanche to information held by the OC on the corporate register. However, when one considered the context and in particular Part 7 of the UTMA, a different interpretation emerged. The Appeal Tribunal agreed with the argument made by the appellant that Part 7 of the UTMA provides a detailed scheme which sets out the circumstances in which a person may access the corporate register held by the relevant OC.
Section 116, together with s 117 (Names and addresses of executive members), s 118 (Insurance information), s 119 (Unit title certificate and access to owners corporation records) form a detailed scheme for the circumstances in which a person may access the Unit Plan’s corporate register, the process by which they may seek access and the information to which they may have access.
Therefore, notwithstanding what appeared to be an ‘open slather’ interpretation that rested upon the text of section 119(4), read in the context of Part 7 of the UTMA the Appeal Tribunal agreed with the appellant’s arguments that the relational words in the definition of ‘eligible person’ in the Dictionary to the UTMA were critical. Reading the definition of ‘eligible person’ alongside section 119(4), the Tribunal concurred with the appellant’s interpretation that section 119(4) does not provide a freestanding right for any owner to obtain all information. The information that the owner may obtain are those in relation to their unit or the common property. This did not entitle the first respondent access the contact details of the unit holders on the corporate register at large, only information that is relevant to the first respondent’s unit or the common property.
Indeed, this was the construction that was preferred by Senior Member Orr in Leonard v Michie  ACAT 14 where the Senior Member found that section 119 contained substantive limitations on the right to access.
When the operation of the limiting words in the definition of ‘eligible person’ in the Dictionary of the UTM Act were considered alongside a reading of section 119 of the UTMA, the Appeal Tribunal concluded that section 119 does not confer on the first respondent a right to access information in relation to a unit which the first respondent did not own or have an interest in. This was sufficient to set aside the order that was made by the original tribunal under section 119(4) because the information sought (and potentially caught by the order) were the contact details of all the unit holders on the corporate register. In the view of the Appeal Tribunal, this went further than the legislation provided.
However, the Appeal Tribunal noted that the construction adopted by the original tribunal was not outlandish and flowed from the text of section 119 as it is currently drafted. The Appeal Tribunal therefore recommended that the Attorney General consider a re-draft of Part 7 of the UTMA.
Finally, the following orders were made:
- The order dated 20 July 2021 that the appellant give the first respondent access to the Corporate Register in accordance with section 119 of the Unit Titles (Management) Act 2011 is set aside.
- Pursuant to section 48(2) of the ACT Civil and Administrative Tribunal Act 2008, the first respondent is to pay the appellant within 28 days the sum of $1,691.75, comprising:
(a) $1,186 for the appeal filing fee; and
(b) $505. 75 for transcript fees.