14 December 20


Let’s take look at this scenario: an owners corporation believes that a building manager is in breach of its building management agreement or simply that an owner is breaching a by-law. The owners corporation engages a law firm to provide advice in relation to the alleged breach by the building manager or the by-law enforcement against the owner. The law firm provides written advice to the owners corporation. The building manager or the owner wants to see that advice and applies to inspect the records of the owners corporation.

Whether an owners corporation may withhold access to a legal advice or other record requires an understanding of legal professional privilege, joint privilege, agency, and the circumstances that may constitute a waiver of that privilege.

What is legal professional privilege?

Legal professional privilege is a right that exists to protect communications passing between a lawyer and a client.

It is often thought that all communications between a lawyer and client are protected by privilege. However, a valid claim for privilege only applies to those communications made for the dominant purpose of providing legal advice or legal services to a client, or for use in current or anticipated litigation.

The Strata Schemes Management Act (NSW) 2015 does not override that right so it can be claimed by an owners corporation when an owner applies to inspect records.

The owners corporation bears the responsibility of proving its claim of privilege.

The difficulty in the strata context is not so much whether legal professional privilege exists but rather who that privilege may be asserted against. This is answered by the principle of joint privilege.

Joint privilege
An owners corporation may share privilege with some or all of its owners that have a common interest in the subject matter of the communication. Often parties can have more than one interest in obtaining legal advice and it is not enough to simply identify a common interest.

That common interest must have sufficient strength or quality to allow the protection of privilege to be shared.

If the interests of the owners corporation and an owner in obtaining that written advice are diverged, then the owners corporation can claim privilege against that owner and withhold access to that communication against that owner.


If an owners corporation has a valid claim of privilege and the interest in the communication is not shared with an owner, that owner may ask another owner to obtain access to that communication to get around the claim of privilege.

The law closes this gap by providing that an owners corporation can still withhold access to a communication if that communication is being accessed by an owner that is acting as an agent for an owner to which a claim for privilege exists.

Even if the above analysis results in an owners corporation being able to claim privilege, it must be considered whether that privilege has been waived.


As the owner of privilege, a client can choose to waive that right to privilege. In our experience this is often done inadvertently without an appreciation of the impact it may have on that person’s claim of privilege.

At its highest, privilege may be waived by conduct that is inconsistent with maintaining confidentiality in a communication. Applying this to an owners corporation, the type of conduct that may have the effect of waiving privilege includes:

• making references to the content of legal advice in correspondence to all owners;
• including copies of legal advice in meeting minutes;
• proposing motions that refer to the outcome of legal advice.

However, if the conduct relates to limited actual or purported disclosure of the contents of a privileged communication, and an express understanding that the communication is not to be shown to anyone else, the conduct may not have the effect of waiving privilege.
If there is conduct that ordinarily constitutes a waiver of privilege, it is necessary to consider whether circumstances exist that would make it unfair to determine that privilege has been waived.


If an owners corporation has acted inconsistently with maintaining confidentiality in a communication, a court has discretion to consider the circumstances surrounding that conduct and whether it would be unfair to determine that privilege is waived. This will usually be most relevant where there has been no intentional waiver of privilege.


The application of legal professional privilege to communications in a strata context is complex and often overlooked. If a request to inspect the records of an owners corporation is made and the owners corporation is considering withholding access to records, the owners corporation will no doubt obtain legal advice (which itself may be privileged) regarding the owners corporation’s ability to not allow a communication to be inspected.

Failing to do so may result in the protection of privilege being lost forever.

Article Written by: Brendan Pitman, Small Myers Hughes

Liability limited by a scheme approved under Professional Standards Legislation
Disclaimer – This article is provided for information purposes only and should not be regarded as legal advice.

Additional Documents

Click here to download: 2021_01_Jan___Privilege.pdf


Contact Us Now

Phone:+ 61 7 5552 6666
Fax:+ 61 7 5528 0955
Address:Level 2, 17 Welch St Southport, Qld, 4215
Postal:PO Box 1876
Southport 4215



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