VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
OWNERS CORPORATIONS LIST	VCAT REFERENCE NO. OC142/2024
CATCHWORDS	
OWNERS CORPORATIONS - statutory construction – section 146(2) of the Owners Corporations Act 2006 – meaning and effect of “any records of the owners corporation.”	

APPLICANT	Simon Saint-John	
RESPONDENT	Owners Corporation PS631843C	
WHERE HELD	Melbourne	
BEFORE	I Scott, Member	
HEARING TYPE	Hearing	
DATE OF HEARING	8 October 2024	
DATE OF ORDER	24 October 2024	
CITATION	Saint-John v Owners Corporation PS631843C (Owners Corporations) [2024] VCAT 1026	
Order

For the written reasons provided, VCAT orders:
1.	Pursuant to section 165(1)(a) and (b) of the Owners Corporations Act 2006 (Vic) (‘the OC Act’), the respondent must, within 7 days of the date of this order and subject to any other orders of VCAT, comply with section 146(2) of the OC Act by providing the applicant with copies of the mobile phone numbers and email addresses (if any) of each lot owner of the respondent and fire safety reports kept by the respondent under r.11A(a) and (e) of the Owners Corporations Regulations 2018 (‘the Regulations’) for a reasonable fee set in accordance with section 146(2) of the OC Act and r.12 of the Regulations.
2.	Any application for costs in this proceeding must be received in writing by the Tribunal and served on the other party on or before 17 November 2024.
3.	Any application for costs by under section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’) will be determined on the basis of documents pursuant to sections 100(2) and (3) of the VCAT Act, without a hearing, unless, on or before 24 November 2024, any person objects to the proceeding being conducted in this manner in writing to the Tribunal and the objection is reasonable. 
4.	If an application for costs is made by the applicant, the applicant is directed to file with the Tribunal and serve on the other party any written submissions as to costs on or before 8 December 2024.
5.	The respondent is directed to file with the Tribunal and serve on the applicant any written submissions in reply on or before 22 December 2024.

I Scott
Member			

APPEARANCES:		
For applicant	Mr L. Magowan, Counsel	
For respondent	Mr N. Jones, Counsel	

Reasons
1	The applicant applied to VCAT seeking orders that the respondent comply with the Owners Corporations Act 2006 (Vic) (the ‘OC Act’) by providing him, as a lot owner of the respondent, access to the records of the respondent, namely email addresses and mobile phone numbers of lot owners and fire safety reports (‘the Records’) required to be kept by the respondent under the Owners Corporations Regulations 2018 (‘the Regulations’).
2	The respondent has refused to provide the applicant, who asserts a right to copy the Records for a fee, access to the Records on the basis that it only has a legal obligation to provide access to its records as listed in s144 of the OC Act and not any other records it may keep, including those records listed in the Regulations at r11A.
3	I heard the submissions of the parties regarding the proper statutory construction of the OC Act and the Regulations on 8 October 2024 and reserved my decision.
The relevant statutory and regulatory provisions 
4	Section 144 of the OC Act provides:
Keeping of records
An owners corporation must keep the following records in respect of the owners corporation—
(a)	the full name and address of each lot owner;
(b)	a consolidated copy of the rules;
(c)	minutes of meetings;
(d)	copies of resolutions;
(e)	records of the results of ballots;
(f)	proxies;
(g)	voting papers or ballots;
(h)	correspondence;
(i)	accounting records;
(j)	records of assets and liabilities;
(k)	financial statements;
(l)	income tax returns of the owners corporation and GST records (if any);
(m)	insurance policies;
(n)	maintenance plans;
(o)	notices and orders served on the owners corporation by a court or tribunal or under an Act;
(p)	notices served by the owners corporation, including notices under Part 10;
(q)	contracts and agreements entered into by the owners corporation;
(r)	leases and licences to the owners corporation;
(s)	leases and licences from the owners corporation.
5	Section 145 of the OC Act provides:
How long must records be kept?
(1)     An owners corporation must keep voting papers and ballots for 12 months after the vote or ballot is taken.
(2)     An owners corporation must keep proxies for 12 months after they expire or are revoked.
(3)     An owners corporation must keep all other documents of a kind set out in section 144 for at least 7 years.
6	Section 146 of the OC Act provides:
Availability of records
(1)	The owners corporation, on request by a lot owner, a mortgagee of a lot, a purchaser of a lot or the representative of a lot owner or mortgagee or purchaser of a lot, must make the records of the owners corporation required to be kept under this Division available to that person for inspection at any reasonable time, free of charge.
(2)	The owners corporation must at the request of a person entitled to inspect the records and on payment of a reasonable fee provide a copy of any record of the owners corporation.
(3)	A fee determined by the owners corporation for the purposes of this section must not exceed the prescribed maximum fee.
7	Regulation 11A of the Regulations provides:
Additional records
In addition to the records in section 144 of the Act, an owners corporation must keep the following records in respect of the owners corporation—
(a)	the telephone number and email address (if any) of each lot owner;
(b)	records of any homicides (if known) which have occurred on the common property;
(c)	the dates of any gas safety check, electrical safety check and pool barrier compliance check conducted by the owners corporation;
(d)	details of any outstanding recommendations for work to be completed from a gas safety check and electrical safety check;
(e)	notices, orders, declarations, reports or recommendations issued by a building surveyor, municipal building surveyor, public authority or under an Act relating to any building defects or safety concerns associated with the common property.
8	Regulation 12 of the Regulations provides:
Maximum fee for copy of owners corporation record
For the purposes of section 146(3) of the Act, the prescribed maximum fee for a copy of any record of an owners corporation is the total of—
(a)	in respect of the first record requested at any one time—
(i)	1·15 fee units; and
(ii)	if a printed copy of the electronically provided record is also requested, 20 cents per page; and
(b)	in respect of each additional record provided in relation to the same request—
(i)	$7.60; and
(ii)	if a printed copy of any additional record electronically provided is also requested, 20 cents per page.
9	Section 172 of the OC Act provides:
Application to VCAT to restrict access to information
(1)	A person whose name or other personal information is kept in the records of the owners corporation or on the owners corporation register may apply to VCAT for an order restricting access to that information.
(2)	VCAT may, if it considers that exceptional circumstances exist, by order direct the owners corporation not to allow access to information about a person held in the owners corporation records or on the owners corporation register for the period specified in the order.
(3)	An order under this section may specify conditions, including conditions specifying the persons who are not to have access to the information.
The applicant’s submissions
10	The applicant’s written submissions dated 20 April 2024 are summarised as follows:
(a)	In the letter of 17 April 2024, the solicitors for the Respondent state:
On what basis does your client consider that he is entitled to the email addresses and telephone numbers of lot owners?  As much as Regulation 11A of the Owners Corporations Regulations 2018 (‘the Regs’) require the Owners Corporation to keep the telephone number and email address of each lot owner, it does not obligate the Owners Corporation to produce this information to lot owners when requested.  This information is collected and held independent of and in addition to the records in section 144 of the Owners Corporation Act 2006 as well as that information contained in the register of the Owners Corporation.  This information is not collected and held for the purposes of sections 144 or 184 of the OC Act.  If Regulation 11A was intended to operate as providing further detail of what is meant by the records to be kept under Section 144 of the OC Act, then it would have stated instead ‘For the purposes of section 144 of the Act, …’ as opposed to what it is stated.  The records that a lot owner is entitled to inspect are those maintained pursuant to Division 1 of Part 9 of the OC Act, which do not include a person’s email address or telephone number.  Regulation 11A of the Regs does not form part of Division 1 of Part 9 of the OC Act.
(b)	Having regard to established principles of statutory construction, it is submitted that the construction advanced by the respondent is plainly wrong (it is also unreasonable, and would leave much of the machinery of the OC Act and Regulations without any utility, thus offending established principles of statutory construction). It is also contrary to the relevant extrinsic evidence namely the Explanatory Memorandum and Second Reading Speech. 
(c)	Properly framed, it is submitted that the dispute between the parties is narrow, namely:
(i)	whether the respondent is obliged to provide to the applicant, a lot owner (and therefore a person “entitled to inspect” within the meaning of s146(1) and s146(2) of the OC Act, telephone numbers and email addresses (if any) of each lot owner, being additional records of the respondent within the meaning of regulation 11A(a) the Regulations in accordance with s146(2) of the OC Act upon payment of the reasonable fee determined by the respondent in accordance with s146(3) of the OC Act (also see regulation 12) [collectively “the Applicant’s Construction”]; or
(ii)	whether, by implication of s146(1) of the OC Act (“… available to that person for inspection at any reasonable time, free of charge …”) the respondent has no obligation to provide to the applicant, copies (cf, inspection) of those records of the respondent upon payment of a reasonable fee [collectively “the Respondent’s Construction”]? 
(d)	It is submitted that properly construed s146 of the OC Act, when read with Regulations 11A and 12, clearly differentiates between:
(i)	those documents listed in s144 of the OC Act, for which a lot owner (amongst others) “may inspect, at any reasonable time, free of charge” (see s146(1) of the OC Act), noting that the section is limited by the Division (i.e. Part 9, Division 1, s144 of the OC Act); and
(ii)	the balance of the “record(s) of the Owners Corporation” (including those provided for under s144 of the OC Act ) for which a lot owner (and others) may receive a copy of by way of a payment of a reasonable fee, the definition of “records of the Owners Corporation” clearly extending (“additional” per r11A) to those matters provided for in r11A of the Regulations (r11A(1) extending to telephone number and email address (if any), the subject of the dispute)). 
(e)	In P Herzfeld and T Prince, Interpretation, Second Edition, Law Book Co 2020 (‘Interpretation’), the learned authors at para [1.140] set out the modern approach to statutory interpretation. Further reference is made to the constructions of definitions (having regard to the use of the definition “any record of the owners corporation” in s.146(2) of the OC Act and r12 of the Regulations (which cross-refers to sa.146(3)) at paras [3.30] and [3.40] and the two relevant presumptions, namely:
(i)	the presumption against unreasonable consequences (see para [9.30]); and
(ii)	the presumption against futility (see para [9.200)]. 
Reference is also made to s35 of the Interpretation of Legislation Act 1984 (Vic) and the commentary at para [8.220] of Interpretation.	
(f)	It should be noted that, in relation to s146(1) of the OC Act:
(i)	it is limited by “this Division”;
(ii)	“this Division” is Division 1 of Part 9 of the Act, and must be a reference to s144 (which lists relatively innocuous and vanilla records of an Owners Corporation); and
(iii)	the provision is directed at inspection at any reasonable time, free of charge (cf para 146(2) and 146(3) and r12).
(g)	In contrast, s146(2) is:
(i)	quite expressly not limited by the Division (i.e., s144);
(ii)	extends to, on its face, “to any record of the Owners Corporation”; 
(iii)	consistent with the Second Reading Speech, the entitlement to inspection referred to in s146(2) is established with reference to s146(1), but is expressly not limited to records of the Owners Corporation required to be kept under this Division (quite the opposite, “… any record of the Owners Corporation …”); and 
(iv)	the focus on the provision is the provision of a copy upon the payment of a reasonable fee (cf s146(1) i.e., being separate and distinct subject matter).
(h)	Regulation 11A sits under the heading “Additional Records”. On its face, the regulation clearly expands to the records of an Owners Corporation that are required to be kept. By the use of the phrase “in addition to the records in s144”, the Parliament has clearly sought to draw a distinction as between s144 records (for which a lot owner can inspect at any reasonable time, free of charge pursuant to s146(1)) and a broader concept of record(s) of the Owners Corporation (see s146(2) and r12).
(i)	It should be noted that: 
(i)	the nature of the records provided for in regulation 11A (telephone numbers and email addresses, records of homicide, notices, orders, declaration reports and recommendations issued by a building surveyor and the like, are of a different character (far less “vanilla”) and perhaps more sensitive than those provided for in s144. That is, there may be very good reasons why Parliament has sought to distinguish between:
(a)	those documents one can obtain pursuant to s146(1) by way of inspection at any reasonable time, free of charge; and 
(b)	those other records of the Owners Corporation for which a lot owner (amongst others) is only able to obtain upon payment of a fee prescribed by the Owners Corporation and in accordance with the Regulations (and in particular regulation 12, when read with s146(3)); and 
(j)	In terms of the presumption against unreasonable consequences, one would readily expect those defined in s146(1) as having the relevant “entitlement” (lot owner, a mortgagee of a lot owner, a purchaser of a lot or a representative of a lot owner, mortgagee or purchaser of a lot) to be able to, upon payment of a fee, to have access to those matters listed in regulation 11A (and in particular, 11A(e)). For example, it is noted that pursuant to s32D(a) of the Sale of Land Act 1962 (Vic), it would be necessary to disclose as a vendor of a lot (pursuant to a s32 statement), those matters provided for in regulation 11A(e) (service of building notices is affected by service of the Owners Corporations, see s236(4C) of the Building Act 1993 (Vic)). One asks rhetorically, how is a lot owner supposed to comply with its statutory obligations (as vendor) if it cannot access the documents (on payment of a fee) for the purpose of making disclosure pursuant to s32 of the Sale of Land Act 1962 (Vic),? How does a prospective lot owner of a lot the subject of an owners corporation obtain the information contained in the records in r11A (which are clearly relevant to the destination as to whether or not to buy the lot) without the Applicant’s Construction? The Applicant’s Construction is the reasonable construction.
(k)	The Respondent’s Construction, is reinforced by considering the alternative. It leads to an unreasonable interpretation in that the Owners Corporation for which those specified in s146(1) would be expected to have access to, not having access to (i.e. those additional records specified in regulation 11A). Further, it also leaves the balance of the machinery provided for in s146(2) and (3) and regulations 11A and 12 futile (or with very little work to do). One asks rhetorically, had Parliament intended to limit access to the additional records specified in regulation 11A to those kept under the Division, why in s146(2) was this not said (and the far broader definition of “any record of the owners corporation” used) (as it was also used in regulation 12)? The Owners Corporation Construction leaves the balance of the machinery of s 146 and rr11A and 12 with no utility (save for the copying of the s144 documents which, if so limited, could be easily said).
(l)	Section 146(2) of the OC Act was introduced by the Owners Corporations and Other Acts Amendment Bill 2019.  The Explanatory Memorandum relevantly provides: 
Clause 62	amends section 146(2) to require an owners corporation to provide a copy of any record of the owners corporation at the request of a person entitled to  inspect the records and on payment of a reasonable fee.  Currently there is no requirement for an owners corporation to do so. 
(m)	In the Second Reading Speech, the relevant Minister stated (Hansard, p 3214):
Clause 62 amends section 146(2) of the Principal Act to require owners corporations to provide a copy of any records of the owners corporation to a person who is entitled to inspect the record at their request. A lot owner, mortgagee of a lot, purchaser of a lot or representative of a lot owner, mortgagee or purchaser is entitled to inspection. To the extent that the records may contain personal information, such as the full names and addresses of each lot owner, new section 146(2) may therefore give rise to minor interferences with the right to privacy. However, as the provision of information is prescribed by law, appropriately confined and relates to persons who have chosen to purchase property with respect to which there is an owners corporation (and may therefore be expected to anticipate that their information may be shared in this manner), in my view the clause is neither unlawful nor arbitrary and therefore does not limit the right to privacy
(n)	At the risk of stating the obvious, the Explanatory Memorandum is entirely consistent with applicant’s construction and entirely inconsistent with the respondent’s construction. This is also entirely consistent with the Second Reading speech. If there was any doubt as to the correct construction. They are answered by the above relevant pieces of extrinsic evidence.
The respondent’s submissions 
11	The respondent’s submissions in reply dated 21 May 2024 are summarised as follows:
(a)	The task of statutory construction was summarized in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, [47] as follows:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
(b)	Similarly, in Waters V Diesel Holdings Pty Ltd [2024] VSCA 77 (29 April 2024) it was stated:
The starting point in any exercise of statutory construction is the text of the provision. However, the text is to be considered in light of its context and purpose.[32] Context includes the legislative context, because the meaning of a provision must be determined by reference to the entire Act.[33] Identification of the statutory purpose may appear from an express statement in the statute or by reference to, or inference from, its language. Discernment of purpose may be aided by reference to any relevant extrinsic materials, in particular those that identify the mischief to which it is directed.[34] Consideration of purpose is further reinforced by s 15AA of the Acts Interpretation Act 1901 (Cth), which provides as follows:
In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
It is also permissible, in determining which of two competing interpretations of a statute ought to be adopted, to have regard to the consequences of each interpretation.
(c)	Based on the principles of statutory construction referred to above, the proper construction of s146(1) and s146(2) of the OC Act is that a lot owner is not entitled to inspect that part of the records of an owners corporation which consists of the telephone number and email address (if any) of each lot owner. 
(d)	Relevantly, s146(1) of the OC Act provides that the owners corporation:
must make the records of the owners corporation required to be kept under this Division available to that person for inspection at any reasonable time, free of charge
(e)	Section 146(1) specifically refers to ‘records of the owners corporation required to be kept under this Division’.  Section 146 of the OC Act is contained in division 9 of Part 1 of the OC Act. Accordingly, the division that is referred to in s146(1) is Division 9 of Part 1 of the OC Act. Division 9 of Part 1 of the OC Act consists of three sections, being ss144, 145 and 146. 
(f)	Section 144 of the OC Act sets out the records which must be kept by an owners corporation. The telephone number and email address (if any) of each lot owner do not appear in 144 of the OC Act, or in any other part of Part 1 Division 9 of the OC Act. Accordingly, and as a matter as statutory construction, the records of the telephone number and email address (if any) of each lot owner are not records that an owners corporation is required to keep under Part 1 Division 9 of the OC Act.  As such records are not required to be kept under Division 9, they are not available for inspection by lot owners pursuant to s146.
(g)	This construction of s146 of the OC Act is based on the words used in that section. The words ‘records of the owners corporation required to be kept under this Division’ should be given their ordinary meaning.
(h)	Regulation 11A(a) of the Regulations provides:
In addition to the records in s144 of the OC Act, an owners corporation must keep the following records in respect of the owners corporation—
(a)	the telephone number and email address (if any) of each lot owner;
(i)	It follows that records of the telephone number and email address (if any) of each lot owner are kept by an owners corporation pursuant to the r11A. They are not kept pursuant to Division 9 of the OC Act.
(j)	Regulation 11A(a) uses the words ‘In addition to the records in s144 of the Act’. These words, on their plain meaning, mean that the records of telephone number and email address are additional to the records maintained pursuant to s144. The records kept by the owners corporation pursuant to r11A(a) are records of the owners corporation but they are not records kept pursuant to Division 9 of the OC Act.
(k)	It follows that while the owners corporation is required by r11A(a) to keep records of the telephone numbers and email addresses of lot owners, such records are not available for inspection by lot owners. 
(l)	The applicant’s submission in relation to s146(2) of the OC Act is misconceived. Section 146(2) should be read in context. In particular, the relevant context is that s146(2) follows on from s146(1). Section 146(1) refers to ‘records of the owners corporation required to be kept under this Division’. The reference in s146(2) to ‘the records’ should be read as a reference to the records identified in s146(1). 
(m)	As stated above, in Waters v Diesel Holdings Pty Ltd ‘Context includes the legislative context, because the meaning of a provision must be determined by reference to the entire Act’.
(n)	The context of the OC Act is that s146(1) gives the lot owner the right to inspect the records the owners corporation is required to keep under Division 9. Section 146(2) allows the lot owner to copy the records. As a matter of statutory construction the records that the lot owner is entitled to copy pursuant to s146(2) should be read as a reference to the documents that are able to be inspected under s146(1). 
(o)	The construction of ss146(1) and 146(2) of the OC Act submitted by the applicant is misconceived. The applicant is proposing a construction whereby the documents that may be inspected under s146(1) is limited to the documents required to be kept under Division 9 but the documents that may be copied under s146(2) extends to any record of the owners corporation. Such construction circumvents the limitation on inspection contained in s146(1) by permitting the copying of any record even if it cannot be inspected under s146(1).
(p)	It is clear that r11A expands the records the owners corporation must keep. However, as set out above, as such records are not required to be kept under Part 9 Division 1 of the OC Act, such records are not able to be inspected pursuant to s146(1) even though they form part of the records of the owners corporation.
(q)	the applicant’s submission stated:
there may be very good reasons why Parliament has sought to distinguish between: (i) those documents one can obtain pursuant to s146(1) by way of inspection at any reasonable time, free of charge; and (ii) those other records of the Owners Corporation for which a lot owner (amongst others) is only able to obtain upon payment of a fee prescribed by the Owners Corporation and in accordance with the Regulations (and in particular regulation 12, when read with s146(3)); 
(r)	These statements are misconceived. The payment of a fee only occurs on the copying of a document pursuant to s146(2) and the inspection of records does not incur a fee. There is no distinction in s146(1) and (2) between different types of documents. It is not unusual that an owners corporation should be allowed to charge a fee for copying as it probably incurs a cost in providing copying facilities.
(s)	The construction of s146 advanced by the respondent does not result in unreasonable consequences as alleged by the applicant. It is not unreasonable for the OC Act to allow an owners corporation to maintain the privacy of lot owners by restricting access to its records of the telephone numbers and email addresses of its lot owners.
(t)	The applicant submitted that pursuant to s32D(a) of the Sale of Land Act 1962, it would be necessary to disclose as a vendor of a lot (pursuant to a s32 statement), those matters provided for in r11A(e). Regulation 11A(e) provides that the owners corporation must keep records of:
(e)	notices, orders, declarations, reports or recommendations issued by a building surveyor, municipal building surveyor, public authority or under an Act relating to any building defects or safety concerns associated with the common property.
(u)	Section 32D(a) of the Sale of Land Act 1962 provides:
A section 32 statement must contain the following details in respect of any notices made in respect of the land—
(a)	particulars of any notice, order, declaration, report or recommendation of a public authority or government department or approved proposal directly and currently affecting the land, being a notice, order, declaration, report, recommendation or approved proposal of which the vendor might reasonably be expected to have knowledge;
(v)	The ‘land’ referred to in s32D(a) of the Sale of Land Act 1962 is the land being sold by the vendor for whom the vendor’s statement is prepared. However, r11A(e) relates to common property of the whole subdivision. Accordingly, the land which is subject to s32D(a) of the Sale of Land Act 1962 is different to the land which is subject to r11A(e).
(w)	Further, s32F of the Sale of Land Act 1962 applies to the sale of land which is affected by an owners corporation and provides:
If the land is affected by an owners corporation within the meaning of the Owners Corporations Act 2006 , a vendor must—
(a)     unless paragraph (b) applies—
(i)     either—
specify in the section 32 statement the information prescribed for the purposes of section 151(4)(a) of the Owners Corporations Act 2006 relating to the owners corporation; or
attach to the section 32 statement a copy of the current owners corporation certificate issued in respect of the land under section 151 of the Owners Corporations Act 2006 ; and
(ii)     attach to the section 32 statement a copy of the documents specified in section 151(4)(b)(i) and (iii) of the Owners Corporations Act 2006 that are required to accompany an owners corporation certificate under that Act; or
(b)     if the owners corporation is inactive, specify in the section 32 statement that the owners corporation is inactive
(x)	As can be seen from the above, a vendor may comply with s32F by attaching to the s32 statement a copy of the current owners corporation certificate issued in respect of the land under s151 of the OC Act.
(y)	Section 151(4)(a)(x) of the OC Act provides that an owners corporations certificate must contain the prescribed information relating to the owners corporation and a lot which must include the prescribed information relating to—:
(x)     notices and orders served on the owners corporation;
(z)	As the owners corporations certificate contains details of notices and orders served on the owners corporation, and as the owners corporation certificate is able to be attached to the s32 statement, a vendor of a lot in an owners corporation is able to give disclosure of any notices and orders served on the owners corporation. It is not necessary for a vendor to inspect the records maintained by an owners corporation under r11A(e) to enable the lot owner to make disclosure of any notices or orders served on the owners corporation. It follows from the above, that a vendor is able to comply with its obligations of disclosure under the Sale of Land Act 1962 without inspection of the records maintained by an owners corporation under r11A(e).
(aa)	Further, it is denied that the construction referred to above leaves the balance of the machinery provided for in s146(2) and (3) and regulations 11A and 12 futile (or with very little work to do).  As set out above, s146(2) allows for the inspection of records as provided in that section. Section 146(2) allows for copying of records which have been inspected pursuant to s146(1). Further, s146(3) allows an owners corporation to charge a fee for the copying of documents under s146(2). Regulation 11A is not futile. Regulation 11A identifies a further class of records that an owners corporation is required to keep in addition to the records it is required to keep under s144. Regulation 12 is not futile as it sets fees for the purposes of s146(3) of the OC Act. As can be seen from the above, on a plain reading of ss146(1), (2) and (3) and r11A and 12 there is a harmonious regime for the keeping of records by an owners corporation and the inspection and copying of some but not all of those records.
(bb)	The applicant’s reference to the Explanatory Memorandum and the Second Reading Speech, does not assist the applicant. 
(cc)	The Second Reading Speech contains the following passage:
To the extent that the records may contain personal information, such as the full names and addresses of each lot owner, new section 146(2) may therefore give rise to minor interferences with the right to privacy. However, as the provision of information is prescribed by law, appropriately confined and relates to persons who have chosen to purchase property with respect to which there is an owners corporation …
(dd)	The reference to ‘the provision of information is prescribed by law, appropriately confined’ is consistent with the respondent’s submission that the inspection and copying of the owners corporation records is confined as set out above to the records required to be kept under Division 9 of the OC Act. 
(ee)	Further, the extracts of the Explanatory Memorandum and the Second Reading Speech upon which the applicant relies do not refer to r11A and accordingly do not address whether the records required to be kept pursuant to r11A are available for inspection under s146.
(ff)	Further, it is relevant that the records required to be kept by an owners corporation pursuant to r11A(a) are records of a confidential nature. There is no provision of either the OC Act or the Regulations which requires a lot owner to provide the lot owner’s telephone number and email address to an owners corporation. However, a lot owner is required to provide the lot owner’s address to the owners corporation.
(gg)	Section 134 of the OC Act provides:
Address of new owners
(1)	A lot owner who sells a lot must advise the owners corporation of the name and address of the new owner within one month of the completion of the contract.
(2)	A person who acquires a lot must advise the owners corporation of the person's name and address within one month of the completion of the contract.
(hh)	Section 135 of the OC Act provides:
Address of absent owners
(1)	A lot owner who does not occupy the lot or who will be absent from the lot for more than 3 months must advise the owners corporation of the lot owner's mailing address in Australia for service of notices and any changes to it as soon as possible.
(2)	If an address in Australia has not been nominated under subsection (1), service may be effected—
(a)	by posting the notice to the last known address of the lot owner in Australia; or
(b)	if an address under paragraph (a) is not known or if a notice sent to that address is returned, in any other manner VCAT considers appropriate.
(ii)	It is notable that a lot owner is only required by ss134 and 135 of the OC Act to provide an address. There is no requirement to provide a telephone number or email address. The absence of any requirement of a lot owner to provide a telephone number and email address to the owners corporation shows the importance the Parliament has placed on that information.
(jj)	The use of the words ‘if any’ in r11A(a) after the words ‘email address’ recognise that not all lot owners will provide their email address to the owners corporation. It should be inferred that when a lot owner provides details of the lot owner’s telephone number and email address, such information is provided on a confidential basis to enable the owners corporation, via its duly appointed Owners Corporation Manager, to communicate with the lot owner or for the purposes of issuing the owners corporation’s notices, minutes, ballots and fee notices. Such information is not provided by a lot owner for the purpose of it becoming accessible to all other lot owners and others entitled to inspect the records of the owners corporation.
The applicant’s submissions in reply
12	The applicant’s written submissions in reply dated 4 June 2024 are summarised as follows:
(a)	Properly framed, the dispute as between the parties is extremely narrow, namely whether s146(2) should impliedly be read to contain the limitation contained in s146(1) of “…[any] records of the owners corporation required to be kept under this Division …” or, as urged by the applicant, no such implied limitation ought be read into s146(2) and the Tribunal ought give effect to the actual words of the section (“any record of the owners corporation”).
(b)	In a sense, the framing of the question reveals the obvious answer. There is a clear delineation as between the limitation contained within s146(1) and s146(2). If Parliament intended s146(2) to be so limited, they would have said so. Instead, they quite expressly use the more general provision “any record of the owners corporation”.
(c)	Regulation 11A(a) obviously expands the records of the owners corporation (“additional records”). The phrase “any record of an owners corporation” is also used in r12. Both the OC Act and Regulations should be read consistently. In this regard, it is noted that s146(3) must be a reference to s146(2) (because it uses the word “fee” and there is obviously no fee payable in relation to inspecting a record under s146(1)) and the setting of such fees is determined by r12 which uses the phrase “any record of an owners corporation”.
(d)	Where an act confers power to make a subordinate instrument, expressions used in a subordinate instrument made in the exercise of that power shall, unless a contrary intention appears, have the same respective meanings as they have on the OC Act conferring the power as amended and in force for the time being (Interpretation of Legislation Act 1984 (Vic) s23). This rule is also reflected in the common law: Blashill v Chambers (1884) 14 QBD 479.
(e)	Section 35(b) of the Interpretation of Legislation Act 1984 provides:
(b)	consideration may be given to any matter or document that is relevant including but not limited to—
(i)	all indications provided by the Act or subordinate instrument as printed by authority, including punctuation;
(ii)	reports of proceedings in any House of the Parliament;
(iii) 	explanatory memoranda or other documents laid before or otherwise presented to any House of the Parliament; and
(iv)	reports of Royal Commissions, Parliamentary Committees, Law Reform Commissioners and Commissions, Boards of Inquiry, Formal Reviews or other similar bodies.
(f)	It is noted that, unlike Commonwealth and other equivalent provisions, the Victorian provisions do not in terms place any limitations on the use which may be made of extrinsic material (see generally extract from Interpretation at [8.220]).
(g)	To the extent that there was any ambiguity in relation to the question posed above, it is definitively answered by:
(i)	the explanatory memorandum which states:
Clause 62 amends section 146(2) to require an owners corporation to provide a copy of any record of the owners corporation at the request of a person entitled to inspect the records and on payment of a reasonable fee.  Currently there is no requirement for an owners corporation to do so. 
(ii)	the Statement of compatibility read in Parliament on 11 September 2021 (see Hansard at 3214), which relevantly provides:
Inspection of documents
Clause 62 amends section 146(2) of the Principal Act to require owners corporations to provide a copy of any records of the owners corporation to a person who is entitled to inspect the record at their request.  A lot owner, mortgagee of a lot, purchaser or a lot or representative of a lot owner, mortgagee or purchaser is entitled to inspection.  To the extent that the records may contain personal information, such as full names and addresses of each lot owner, new section 146(2) may therefore give rise to minor interferences with the right to privacy. However, as the provision of information is prescribed by law, appropriately confined and relates to persons who have chosen to purchase property with respect to which there is an owners corporation (and may therefore be expected to anticipate that their information may be shared in this manner), in my view the clause is neither unlawful nor arbitrary and therefore does not limit the right to privacy. 
(h)	That is, the Parliament made it abundantly clear by using the phrase “any records of the owners corporation” in relation to s146(2) that the provision was not limited to the records provided for in s146(1). The Tribunal ought not be troubled by the respondent’s submissions.
Oral submissions
13	Both parties made oral submissions at the hearing which traversed the same ground as their written submissions with some additional submissions.
14	The applicant’s additional submissions were that its position was consistent with the OC Act because, for example, under s76 of the OC Act (which relates to the giving of notice for special general meetings) there is a note that says “The Electronic Transactions (Victoria) Act 2000 enables this notice to be given electronically” and so it follows that for a lot owner to be able to exercise this right or obligation electronically they would need access to the email addresses and/or phone numbers of other lot owners required to be kept by the respondent pursuant to r11A of the Regulations and that the words “any record of the owners corporation” used in s146(2) of the OC Act means any record an owners corporation and not just those required to be kept pursuant to s144 of the OC Act and r11A of the Regulations because that is the natural and ordinary meaning of the words “any record of the owners corporation.” 
15	The respondent’s additional submissions related to r11A of the Regulations not being futile because, although no one can access these records, there could be many reasons why Parliament has required this class of additional records to be kept by an owners corporation such as to enable the completion of an owners corporation certificate under s151 of the OC Act.
16	Neither party made any submissions in relation to the meaning and effect of s172 of the OC Act.
Consideration 
17	This dispute concerns the meaning of the words “any record of the owners corporation” (‘the words’) as used in s146(2) of the OC Act. The applicant says that the words are not limited to the records to be kept by an owners corporation under s144 of the OC Act essentially because s146(2) of the OC Act does not say that the right of certain persons, including a lot owner, to obtain copies of the records of the owners corporation is limited to the records to be kept by the owners corporation under Division 1 of Part 9 of the OC Act. This is in contrast to s146(1) of the OC Act which allows certain persons, including a lot owner, the right to inspect “records of the owners corporation required to be kept under this Division …”
18	The respondent says that the words are limited to the records to be kept by the owners corporation under s144 of the OC Act because s146(2) of the OC Act is in Division 1 of Part 9 of the OC Act as is s144 of the OC Act and so the words in s146(2) must be read as being limited to Division 1 of Part 9 of the OC Act meaning that copies of records to be made available to certain persons is limited to the records of the owners corporation to be kept under Division 1 of Part 9 of the OC Act (and is limited to the classes of persons described in s146(1) of the OC Act as being entitled to inspect the records) which therefore does not include the additional documents to be kept by an owners corporation under r11A of the Regulations. 
19	The respondent says this creates a harmonious regime for the keeping of records by an owners corporation and the inspection and copying of some but not all of those records. The applicant says there are two regimes, one for the inspection, free of charge, of records required to be kept by an owners corporation under s144 of the OC Act, and one for the copying, by a person entitled to inspect under s146(1) of the OC Act, of any records of the owners corporation for a fee.
20	I agree with the submissions of the respondent as expressed in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27, [47] and Waters V Diesel Holdings Pty Ltd [2024] VSCA 77 (29 April 2024) that the task of statutory construction must begin with a consideration of the text itself, to be considered in light of its context and purpose. Context includes the legislative context, because the meaning of a provision must be determined by reference to the entire Act and that extrinsic materials cannot be relied on to displace the clear meaning of the text. [43] 
21	As to purpose, s1 of the OC Act provides:
	Purposes
The main purposes of this Act are—
(a)	to provide for the management, powers and functions of owners corporations; and
(b)	to provide for appropriate mechanisms for the resolution of disputes relating to owners corporations; and
(c)	to amend the Subdivision Act 1988 in relation to the creation of owners corporations.
22	Section 1 of the OC Act is of no assistance to the Tribunal regarding the task at hand as both the applicant’s and the respondent’s submissions would support the purposes of the OC Act, nor is s3 of the OC Act regarding definitions as the term “records” is not defined by the OC Act. 
23	As to context, there is some merit in the respondent’s submission that, because s144 and s146 are both in Division 1 of Part 9 of the OC Act that the text of those sections should be read in the context of the Division which is headed “Keeping of Records” meaning that the words “any record of the owners corporation” as stated in s146(2) of the OC Act must be read in the context of s146(1) of the OC Act which limits inspection of records to those records “required to be kept under this Division …” and so it must follow that copying of the records of an owners corporation must also be limited to the records “required to be kept under this Division …”
24	Nevertheless, as to the text itself, the language used in Division 1 of Part 9 of the OC Act is, in my opinion, clear enough for the intention of Parliament to be apparent without the need to resort to any implied limitation of s146(2) by s146(1) of the OC Act as submitted by the respondent. 
25	This is because s145(3) of the OC Act, which is also in Division 1 of Part 9 of the OC Act, specifically refers to s144 of the OC Act regarding how long an owners corporation must keep some of those records listed in s144 of the OC Act.
26	Section 145 of the OC Act relevantly provides:
…
(3)     An owners corporation must keep all other documents of a kind set out in section 144 for at least 7 years. 
27	Therefore, by specifically referring to a class of records, s145(3) is obviously limited to that class of records. Likewise, by specifically referring to a class of records, being the records “required to be kept under this Division …” s146(1) of the OC Act is also obviously limited to the records “required to be kept under this Division …”. However, s146(2) of the OC Act presents without either of the specific limitations that Parliament placed in s145(3) or s146(1) of the OC Act.    
28	Therefore, I do not accept the respondent’s submission that s146(2) of the OC Act is impliedly limited by s146(1) of the OC Act because, had Parliament intended such a limitation, then one might expect s146(2) to be drafted in the similar terms to s145(3) and/or s146(1), both of which unambiguously limit or specify the owners corporation records to which they refer and also express that limitation in differing ways.
29	I reach this conclusion based on the presumption of statutory construction that words are used consistently throughout a statute, and that different words or expressions in the same statute are intended to have different meanings.           
30	Furthermore, when looking at the OC Act as a whole, because the meaning of a provision must be determined by reference to the entire OC Act, it becomes clear that there is a broader context beyond Division 1 of Part 9 of the OC Act to be considered regarding access to the records of an owners corporation which relates to s172 of the OC Act.
31	Section 172 of the OC Act relevantly provides:
	Application to VCAT to restrict access to information
(1)		A person whose name or other personal information is kept in the records of the owners corporation or on the owners corporation register may apply to VCAT for an order restricting access to that information.
(2)		VCAT may, if it considers that exceptional circumstances exist, by order direct the owners corporation not to allow access to information about a person held in the owners corporation records or on the owners corporation register for the period specified in the order.
(3)		…
32	Firstly, s172(1) refers to “the records” of the owners corporation but does not mention s144 of the OC Act or r11A of the Regulations and so I am satisfied, using the ordinary meaning of the word “records”, that the term “records” in this context means all of the records of an owners corporation and not just those records required to be kept under s144 of the OC Act or r11A of the Regulations.
33	Secondly, s172(1) of the OC Act refers to a person’s name “or other personal information” being kept in the records of the owners corporation and I am satisfied that, applying the ordinary meaning of the term “other personal information” as being or including information that could identify or lead to the identification of a person, email addresses and telephone numbers of person would be covered by the term “other personal information” in s172(1) of the OC Act.
34	Therefore, it follows that s172(1) of the OC Act presumes that owners corporation records, including records required to be kept under r11A of the Regulations, can be accessed by certain people. If this were not the case, then s172(1) of the OC Act would be rendered futile because there would be no point in a person applying to VCAT for orders restricting access to their “personal information” kept in the records of an owners corporation when, if the respondent’s submissions are correct, no one can access the records required to be kept by an owners corporation under r11A of the Regulations which may include personal information of lot owners by way of email addresses and telephone numbers. 
35	Thirdly, the very presence of s172 in the OC Act lends considerable weight to the applicant’s submission that certain people are entitled to copies of “any record of the owners corporation” because s172 of the OC Act puts the onus on the person seeking to restrict access to the records of the owners corporation to make an application to VCAT for an order restricting access to that information which VCAT may make “if it considers that exceptional circumstances exist …”. Therefore, there is essentially a presumption of a right to access the records of the owners corporation for certain people identified in s146(1) of the OC Act.
36	Therefore, taking into account the OC Act as a whole and applying the ordinary meaning of the word “any” in the relevant context as being used to express a lack of restriction, I am satisfied that the words “any record of the owners corporation” in s146(2) of the OC Act mean exactly what they say and are not limited in scope by s146(1) of the OC Act to just records to be kept under Division 1 of Part 9 of the OC Act. 
37	I prefer this construction over the respondent’s submission that the meaning of “any records of the owners corporation” is impliedly limited by s146(1) of the OC Act because the application of the literal meaning of “any records of the owners corporation” in the context of the whole of the OC Act does not, in my view, lead to any inconsistency, absurdity, unreasonableness, inconvenience, departure from the purposes of the OC Act or any other reason to find that the words “any records of the owners corporation” should be impliedly restricted by s146(1) in order to give effect to the intention of Parliament.
38	As a result, I accept the submissions of the applicant that s146 of the OC Act, when read with regulations 11A and 12, clearly differentiates between:
(i)	those documents listed in s144 of the OC Act, for which a lot owner (amongst others) “may inspect, at any reasonable time, free of charge” (see s146(1) of the OC Act), noting that the section is limited by the Division (i.e. Part 9, Division 1, s144 of the OC Act); and
(ii)	the balance of the “record(s) of the owners corporation” (including those provided for under s144 of the OC Act ) for which a lot owner (and others) may receive a copy of by way of a payment of a reasonable fee, the definition of “records of the owners corporation” clearly extending (“additional” per r11A) to those matters provided for in r11A of the Regulations (r11A(1) extending to telephone number and email address (if any), the subject of the dispute)).
39	Given I have found a lack of ambiguity on the face of s146(2) of the OC Act when considering just the text of the provision and also when read in the context of the OC Act as a whole, I need not exercise the discretion to consider extrinsic materials such as the relevant Explanatory Memorandum. Nevertheless, I consider it clear that the mischief that clause 62 of the Owners Corporations and Other Acts Amendment Bill 2019 intended to remedy was that certain people, including a lot owner, as described in s146(1) of the OC Act, could not, prior to the amendment, obtain a copy of “any record of the owners corporation.”
40	Also, given I have found a lack of ambiguity on the face of s146(2) of the OC Act when considering just the text of the provision and also when read in the context of the OC Act as a whole, I do not need to consider the presumption against futility suffice to say that, had I concluded the opposite about s146(2) of the OC Act regarding ambiguity, then I might have found that r11A of the Regulations offended the presumption against futility if it was the case that an owners corporation had to keep the records pursuant to r11A of the Regulations but no one could access those records by way of obtaining a copy for a fee.
41	Additionally, but for the existence of s172 of the OC Act, the construction of s146(2) of the OC Act that I have preferred might have led to unreasonable consequences regarding the potential unreasonable access to personal information contained in the records of the respondent by certain persons identified in s146(1) of the OC Act. Nevertheless, this potential outcome is cured by the existence of s172 of the OC Act.
42	In conclusion, given that the common property in a plan of subdivision is collectively owned by the lot owners as tenants-in-common, it is entirely consistent and logical that there is, in the OC Act, a presumption in favour of access to any record of the owners corporation for the persons identified in s146(1) of the OC Act via the copying of any record of the owners corporation for a fee (s146(2)) under the proviso that a person can apply to VCAT for orders restricting access to personal information kept in the records of the owners corporation (s172(1)) which VCAT may order if it considers that exceptional circumstances exist (s172(2)).
43	As a result, pursuant to s165(1)(a) and (b) of the OC Act, I will order that the respondent must, within 7 days of the date of the order and subject to any other orders of VCAT, comply with s146(2) of the OC Act by providing the applicant with a copy of the mobile phone numbers and email addresses (if any) of each lot owner of the respondent and fire safety reports kept by the respondent under r11A(a) and (e) of the Regulations for a reasonable fee set in accordance with s146(2) of the OC Act and r12 of the Regulations.

I Scott
Member