Abraham v The Owners Strata Plan No. 61419

NCAT Consumer and Commercial|2021-02-22

Application

This application concerns SP 61419, a strata scheme known as Nautilus. It is situated on approximately 4 hectares of beachfront land, and comprises approximately 30 low rise buildings, expansive landscaped grounds, pools, spa, gym and tennis courts. It employs a building manager and a strata manager.
On 6 August 2020 the applicant, who is the owner of lot 27 in the scheme, and is represented by Mr Gary Sisson, made a request to inspect the records of the strata scheme. On 4 November 2020 the applicant filed this application. She complains that some of the requested records were not made available in accordance with that request, and some records have still not been made available. She seeks an order that the remaining records requested in the 6 Augusts 2020 email be produced.
The Owners Corporation, represented by members of the strata committee, says that it has provided the information or in the alternative understood that the strata manager had provided it. However at the hearing they conceded that some records may not have been produced. The Owners Corporation's detailed response will be dealt with below.

The law

The Strata Schemes Management Act 2015 ("SSMA") relevantly provides that an owner may make a request to inspect the records of the strata scheme: 182 REQUESTS FOR INSPECTION OF RECORDS OF OWNERS CORPORATION (1) Persons who may inspect An owner, mortgagee or covenant chargee of a lot in a strata scheme, or a person authorised by the owner, mortgagee or covenant chargee, may request the owners corporation to allow an inspection to be carried out under this section. (2) Form of request The request must be made by written notice given to the owners corporation and be accompanied by the fee prescribed by the regulations. (3) Items to be made available for inspection The owners corporation must make the following items available for inspection by the person who makes the request or the person's agent-- (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, (k) if the duties of the owners corporation under this subsection have been delegated to a strata managing agent, any other records (including records of the strata managing agent) relating to the strata scheme that are prescribed by the regulations, (l) if a building manager agreement is in force or has been entered into but has not yet commenced, a copy of the building manager agreement, (m) particulars of any service agreement entered into by the owners corporation, (n) particulars of any agreement entered into with a local council for a strata parking area, (o) if the request is made within 5 years after the end of the initial period, particulars of any orders made under section 27 and copies of any related contracts or other documents. : Maximum penalty--5 penalty units. (4) Meeting inspections For the purpose of complying with requirements for the giving of notice of a meeting of the owners corporation, the original owner (whether or not having ceased to be an owner) or an agent authorised in writing by the original owner is entitled to inspect the strata roll without payment on making a written application. (5) Voting in secret ballots must not be disclosed Despite any other provision of this section, the owners corporation must not make available for inspection any record that would disclose how an owner voted in a secret ballot unless the owners corporation is directed to do so by the Tribunal or a court.

Jurisdiction

I am satisfied that the applicant is an owner and was therefore entitled to make the request under s 182. She made the request in writing and it was accompanied by the relevant fee. The Tribunal has jurisdiction to determine this dispute.
I must determine whether each of the requested records or documents is a record or document to which the applicant is entitled, and if so, whether that document or record has been wrongfully withheld from the applicant. I intend to deal only with those records which the applicant identified at the hearing as having not been produced.

Service provider obligations

The applicant requested various records "having regard to the service provider's obligations under annexure B of the amended service agreement/heads of agreement and in particular in accordance with clause 3.4 of annexure B" including various registers and the location of all first aid kits.
The obligation which the Owners Corporation has under s 182 is to make available for inspection any records "under the care and control of" the Owners Corporation". This should include any registers which the Manager is required to maintain, as these are records which, under the service agreement, the Owners Corporation can require the manager to produce. In respect of each:

Preventative maintenance and repairs and maintenance

The Owners Corporation said that these records are being transferred to a computer programme known as Mybos, which is in the trial phase. The Owners Corporation stated that it could not at this stage produce a report from this programme.
Mr Sisson disagreed. He said that there is a capacity to print out a report.
I am not in a position to make any finding about whether a report can or cannot be produced from the Mybos computer programme, as there was no evidence before me which would enable me to resolve this issue. However, the records which are required by the service agreement to be kept by the Building Manager and made available to the Owners Corporation must be made available upon request for inspection by an owner. They can be produced in whatever form they are in. I will order that the Owners Corporation produce those records.

Asbestos record

The applicant complained that he had not received the register in hard copy. The Owners Corporation said it had been supplied in both hard and soft form. I am satisfied that the asset register had been supplied by the date of the hearing.

Monthly maintenance report

Mr Sisson said that a monthly maintenance report can be produced from Mybos. The respondent undertook to liaise with the applicant to produce this report.
I am satisfied that the report was able to be produced, but was not produced and provided to the applicant in accordance with his request. I will order the Owners Corporation to produce this report.

Hazardous goods register

The Owners Corporation said this had not been produced because it is a record held by the Building Manager with the chemicals to which it relates. Mr Sisson stated that in his opinion, a duplicate copy should be maintained at the office. In any event it ought to have been produced upon request.
I will order that the register be produced. I have no power under s 188 SSMA to order the Owners Corporation to maintain a duplicate copy at the office.

The applicant said that the maintenance of such a register is an OH&S requirement. The Owners Corporation said that they have been told by the Manager that the devices have been checked, but they are unaware of any requirement to maintain a Register. I can find no express requirement in the Building management agreement.
However, the Building management agreement requires the Manager to maintain a register of maintenance and testing of emergency equipment (which may include the devices referred to). Such register should be produced to the applicant and I order accordingly.

Grease trap waste register

The Owners Corporation says that the regulation of grease traps in businesses conducted by tenants is a matter for the local Council. The Owners Corporation does not maintain a grease trap waste register.
I cannot order the production of something which does not exist.
The applicant says that the common property BBQ's present a health issue if the grease is not regularly removed. However this is not an issue which can be dealt with under s 188.

Evacuation plans and the location of all first aid kits

The applicant says that first aid kits which had been placed around the complex have been removed and not replaced. The Owners Corporation gave evidence that the committee was satisfied with the number and location of the remaining kits.
There is an obligation on the manager to "arrange quotes and coordinate contractors to check first aid equipment and supplies are maintained to an appropriate level as required and at least six monthly"
There is no obligation on either the manager or the Owners Corporation under the Service agreement or generally under the SSMA to maintain records of the location of first aid kits. I am not satisfied that I have power to make any order in respect of the location of first aid kits.
The manager is also required to: "If required, assist the strata manager in the conduct of fire evacuation procedures and review plan annually".
If any records exist in respect of evacuation plans, those records should be produced, and I will order accordingly.

Mybos

The Tribunal heard evidence from both the applicant and the strata committee that the computerised management system Mybos is currently being introduced. Records are being transferred to it, and it is now being used to record and manage maintenance and repair issues. It is intended that a monthly report will be generated and made available to all owners.
The Mybos records are records under the care and control of the Owners Corporation. To the extent that the applicant has not been given access to those records, that access should be provided. However, an order requiring the provision of monthly reports to owners on an ongoing basis is outside the scope of an order under s 188.

Insurance coverage

The applicant conceded that this information had been provided but said that it appeared that the insurance policies have expired. The Owners Corporation said that the applicant had been provided with information at the date requested.
I am not satisfied that any information has been wrongfully withheld and I decline to make any order in respect of insurances.

Covid-19 documentation

The applicant's complaint was that this information was not initially provided to him. The plans produced were outdated, or dated well after the date of the request. He said that someone needed to be chasing up the manager and tenants to ensure that the plans were appropriate and kept up to date.
The applicant's concerns fall outside the scope of s 188. As the Covid-19 information has now been supplied to the applicant, I am not satisfied that it has been wrongfully withheld and I decline to make an order in respect of it.

Other issues

The applicant also raised a concern that NCAT notices are not being uploaded to the Portal. This matter is outside the ambit of the current application. However the respondent agreed to check and ensure that notices were uploaded if they were not already there.

Orders

I find that: 1. the applicant is entitled to inspect the records referred to in the following order, and 2. Those records have been wrongfully withheld from her.
On that basis I order that : 1 The Owners Corporation is to make available to the applicant, at a time and place to be agreed between the parties, and failing agreement, at the office of the strata managing agent at midday on 19 May 2021, the following documents or records: 1. Any records and registers which are required by the service agreement to be kept by the Building Manager and made available to the Owners Corporation (including without limitation any preventative maintenance records, any repairs and maintenance records, any register of maintenance and testing of emergency equipment, and any records in respect of evacuation plans), and 2. A monthly maintenance report, to be generated from Mybos, and 3. The hazardous goods register, and 4. Access to the records maintained in the Mybos computer program, to the extent that those records have not been provided to the applicant.

            I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 July 2021

At a glance

Court

Decision date

Source

Judgment (17 paragraphs)

Parties

Legislation Cited (1)

Cited By (1)