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Topic
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Background:
An owner is taking the OC to NCAT for a number of reasons, including the strata commitee failing to maintain the property, and performing their duties to their best ability, amongst other issues.
An invoice for legal advice was found during a strata search.
Question:
As an owner, can we request that we view what legal advice was given to the OC?
As all us owners have paid for it, we should be able to view this advice?
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Replies
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This is a really good issue.
From all that I have read on this matter confidentiality (privilege) comes into play if you are the party the OC has sought legal advice against.
If it is you v the OC (or vice versa) then privilege prevents you from accessing the record i.e. the advice the OC got for the matter.
If you are not that person then you should be able to see that advice.A strange situation because if you are denied by privilege then how hard is it to get a strata mate to access it.
As I like to say; who cares what we think, it is what the Courts think.
So here is a case where me old mates down at the NSWCA (Highest Court in NSW) say privilege exists.“ … the disputed documents are concerned with actual or prospective claims against ******** over which the Owners Corporation is entitled to assert legal professional privilege as against ********.”
The Owners – Strata Plan No. 74602 v Eastmark Holdings Pty Limited [2013] NSWCA 221
I’m not a lawyer, but this is what I understand.
All correspondence of the OC is the property of the OC and as such can be accessed by any lot owner.
The only caveat is that a lot owner who is taking the OC to court is barred from seeing the legal correspondence associated with the case ( until the matter is settled, which would include any appeals).
If I was on this committee, I would limit the people who have access to the legal documents to those who are running the case. Usually one or two people are elected to speak with the lawyers.
What you do not want is an associate of the aggrieved lot owner to access legally privileged documents and pass that to the aggrieved owner.
Not all lot owners are going to side with the OC nor with the aggrieved lot owner.
I recall a case in our block where a legal dispute between the committee and an employee was resolved in court as a “sealed document” which meant no one who wasn’t involved in the case was able to view the document. However, as interested parties, two owners not on the committee arranged to go to the strata managers office where they were allowed to view the document under supervision.
The committee issued a statement that we (the owners) had won the case. The people who viewed the papers said that wasn’t true. We’d lost but there was no way of proving that as they weren’t allowed to copy the papers.
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Let me elaborate on the “winning a case” position.
In JT’s case it seems that some agreement (called a settlement) was reached between the two parties.
When this happens, the lawyers always say at the beginning of the settlement deed something to the effect that no fault is found with either party. So that means no one actually won (further you can only win a case if the judge determines that)
Now when a settlement is made its usual for both parties to reach a mutually agreed position (usually some sort of monetary settlement). That means that one party gives up something (money) to appease the other party.
If your case was to seek compensation of say one million dollars and on settlement you received a half a million, you’d call that a win. But that’s different to winning a court case. (even though the outcome may have been the same)
And the take out of this from me, if anyone has got this far, is that settling a matter out of court is always preferable to going to court. In a settlement you have control of the outcome. If you leave it to the court, its pot luck.
@ The Hood
I recall the case you mention and agree with your interpretation.
@Kaindub you wroteIf I was on this committee, I would limit the people who have access to the legal documents to those who are running the case. Usually one or two people are elected to speak with the lawyers.
What you do not want is an associate of the aggrieved lot owner to access legally privileged documents and pass that to the aggrieved owner.
I see your point, but doubt you have any lawful right to deny anyone not involved in the legal proceedings from accessing the documents. Unless, possibly, if those who you denied are not helping foot the OC’s legal bills.
I see your point, but doubt you have any lawful right to deny anyone not involved in the legal proceedings from accessing the documents.
Correct.
Unless, possibly, if those who you denied are not helping foot the OC’s legal bills.
Can’t imagine any circumstances where people who were not contributing – e.g. aren’t owners – would have any claim to see any documents.
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@Jimmy
It seems I was not succinct in my choice of words. When I wrote:
Unless, possibly, if those who you denied are not helping foot the OC’s legal bills
I meant an owner who is not specifically named in the legal action could tell the OC that if the OC insists on denying her access to the documents, then she should be exempt from contributing to legal fees. After all, on what basis can an OC on the one hand deny her access and on the other require her to share in the legal fees of the OC?
These are two different issues. The owner isn’t paying her levies (or not paying the full amount). That doesn’t mean she is no longer a member of the Owners Corporation and entitled to see all its documents.
The strata manager or committee is denying an owner their legal right to view documents. However, if they are unfinancial, the owner can’t vote on a motion to restore their rights.
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If a person obtains privileged documents by improper means, e.g. by getting another owner to pass them on, you can likely get an injunction to prevent them using those documents.
Anyone who did that would be pretty silly.
Back to the original question – yes the owners have the right to see the legal advice, unless it is privileged in respect of those owners.
JimmyT wrote:
“The committee issued a statement that we (the owners) had won the case. The people who viewed the papers said that wasn’t true. We’d lost but there was no way of proving that as they weren’t allowed to copy the papers.”
How is this possible – it is rewarding lies. So not only is the Committee lying to the owners, but the legal process is rewarding the lying committee and … nothing happens.
How is this possible – it is rewarding lies.
The people who viewed the document could have made a fuss but the issue was so personally toxic and the participants so belligerent, it wasn’t worth making a fuss. There was a relatively minor payout involved. Small war, not many dead. There are no StrataKops.
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