Introduction

In complex strata disputes, particularly those involving building defects, an owners corporation may try to hide crucial documents by claiming “client legal privilege.” This tactic can prevent a lot owner from accessing the evidence needed to prove their case. So what happens when a lot owner challenges this claim?

In this case study, we take a look at a key procedural win in a 2025 NCAT hearing. A lot owner, represented by PBL Law Group, successfully defeated an owners corporation’s privilege claim, forcing it to produce disputed documents.

The Facts

The dispute involved two lot owners in a Sydney strata scheme who had already won consent orders in March 2024. Those orders compelled the owners corporation to fix significant “water entry… with damaging effects from water and mould”.

A new dispute emerged over the owners corporation’s “compliance or non-compliance” with that work order. This failure led the lot owners to file new proceedings seeking the appointment of a compulsory strata manager.

The Problem

To prove the owners corporation’s non-compliance, the lot owners needed to see the documents from the OC’s former engineering consultant.

PBL Law Group, on behalf of the lot owners, issued a summons for all instructions, reports, and correspondence from that former engineer. The owners corporation tried to block this. It objected to providing multiple key documents, claiming they were protected by “legal professional privilege”. This created a critical procedural battle over access to evidence.

Application to the Tribunal

The lot owners, represented by PBL Law Group, applied to have the owners corporation’s objection dismissed.

Our core argument was that the owners corporation had failed to discharge its onus (or burden of proof) to support its privilege claim. We submitted that their claim was too vague and did not provide enough specific facts to allow an objective assessment of whether the documents were created for the “dominant purpose” of litigation.

We also argued that instructions given to an expert are generally not privileged, as the Tribunal needs them to assess the “depth and quality of reasoning for the opinion”.

The Decision

The Senior Member “respectfully agree[d] with the lot owners’ submission”.

The Tribunal found the owners corporation’s claims were “not sufficiently specific” and failed to identify the subject matter or content of the documents. The Senior Member confirmed that withholding expert instructions “would be inconsistent with an expert’s duty” to the Tribunal.

The Tribunal refused the owners corporation’s objection and granted the lot owners access to all disputed documents. Costs were reserved, but the Senior Member noted he could see “no basis… for an eventual conclusion that costs… should not follow the event”, signalling the owners corporation would likely have to pay the lot owners’ costs for the application.

Conclusion

The case shows that a lot owner can successfully challenge an owners corporation’s attempt to hide documents behind a vague or improper claim of privilege.

The case shows that NCAT will uphold an expert’s duty to the Tribunal and will not permit critical instructions to be hidden from scrutiny. This procedural victory, secured by PBL Law Group’s strata dispute NCAT lawyers, was a critical step in the lot owners’ main case, demonstrating the importance of expert legal representation to win complex procedural and evidentiary fights.