| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : ANTOFF and THE OWNERS OF ANGELO STREET STRATA PLAN 8883 [2014] WASAT 56 MEMBER : MS N OWEN-CONWAY (MEMBER) HEARD : 8 MAY 2014 DELIVERED : 21 MAY 2014 FILE NO/S : CC 595 of 2014 BETWEEN : VAL ANTOFF Applicant
AND
THE OWNERS OF ANGELO STREET STRATA PLAN 8883
Respondent
Catchwords: Interim relief Strata Titles Act 1985 (WA) Turns on own facts Legislation: State Administrative Tribunal Act 2004 (WA), s 46(1)
Strata Titles Act 1985 (WA), s 35, s 77B, s 81(3), s 82, s 82(2), s 97, s 97(1), s 99, Sch 1 bylaw 11(3), bylaw 11(4), bylaw 12(6) Result: Interim application dismissed
Leave granted to withdraw substantive application
Summary of Tribunal's decision: The applicant made application for interim relief. The applicant failed to establish that the resolutions passed at an annual general meeting were invalid. The applicant failed to establish that the strata levies imposed by reason of one of the resolutions passed at the annual general meeting were excessive as alleged. The applicant's basis for interim relief was not supported by the evidence produced by the parties. The application was dismissed.
Category: B
Representation: Counsel:
Applicant : In person
Respondent : Mr J Szabo and Ms Bellamy (Acting as Agents)
Solicitors:
Applicant : In person
Respondent : N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 By substantive applications filed in the Tribunal on 6 May 2014 and 7 May 2014, the applicant sought the following final orders: 2 Originally, the application was based primarily on s 99 of the Strata Titles Act 1985 (WA) (ST Act) (CC 595 of 2014 filed 6 May 2014). However, as the applicant sought an order that was to be made pursuant to s 97 of the ST Act (see order 1 as sought), the applicant filed an additional application pursuant to s 97 to support that order (CC 599 of 2014 filed 7 May 2014). The latter application was consolidated with the first application (CC 595 of 2014), which is referred to as the lead matter (substantive consolidated proceeding). 3 On 6 May 2014, the applicant made an application for interim relief in CC 595 of 2014. The applicant sought an order to 'stop the work for the replacement of pavement in common area due to start on 12 May 2014'. Sections 97 and 99 of the ST Act do not empower the kind of order sought. 4 The Tribunal notes that the combination of s 81(3) and s 82(2) of the ST Act empowers the Tribunal to make the kind of interim order sought. In any event, the application for interim relief was refused on 8 May 2014. 5 At the conclusion of the initial directions hearing in the consolidated matter, the applicant sought the leave of the Tribunal to withdraw the consolidated application. That application for withdrawal was made pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) and was not opposed. The Tribunal made a final order that the consolidated proceeding is withdrawn.
Interim application 6 The applicant sought an interim order to 'stop the work for the replacement of pavement in common area due to start on 12 May 2014'. It was common cause that the work was to be performed by a contractor who had been engaged by the respondent through the actions of the respondent's strata manager represented by Mr Joe Szabo. The applicant asserted that: 1) A resolution passed on 15 May 2013 to repave a large portion of the common area of the strata development and to engage a contractor was invalid because: 2) A resolution passed at an Annual General Meeting (AGM) on 31 March 2014 to engage the contractor to repave the larger area of the common property of the strata development was invalid because: 3) A resolution was passed that each of the above meetings to render a series of special levies to the lot proprietors to pay for the repaving was invalid for the reasons referred to in point 1, and points 2(a) and (b) above; and, further, that the amount of the special levies was excessive because the quotation was excessive. 4) The respondent was prohibited from allowing the contractor to perform the paving work because four of the lot proprietors had made a written request on 17 April 2014 for an Extraordinary General Meeting (EGM), which EGM had not been called, and in fact the 21 days within which the council of owners could take steps to call the EGM had not, as at the date of the application, yet passed. 5) The applicant had obtained a quote for the paving work just prior to the initial directions hearing, which was lower than the one supported by the resolution on 31 March 2014, to engage the contractor and to raise the special levy. 7 No documents were filed by the applicant, save for the following: 8 Ms Bellamy, the proprietor of Lot 1 of the strata development and the former treasurer of the council of owners, provided a written submission by email on the evening of 7 May 2014. 9 At the interim application hearing the applicant provided to the Tribunal: a) Mr Szabo's email to Ms Hill dated 18 April 2014; b) a legible copy of the email from Ms Hill referred to in point 3 above; c) minutes of the EGM of the respondent held on 30 December 2013; and d) Ms Coombs' email to the applicant dated 6 May 2014. 10 Mr Szabo attended at the interim application hearing and directions hearing on 8 May 2014, as did Ms Bellamy. Both Mr Szabo and Ms Bellamy attended the hearing on 8 May 2014 by telephone.
The facts on the interim application 11 At the interim application hearing Mr Szabo read to the Tribunal the resolutions referred to at the AGM and passed at the AGM on 31 March 2014 with which the applicant agreed. In short, it was unanimously resolved by the attendants at the AGM that the respondent should accept the quotation to replace the common property brick paving for the sum of $31,277 including GST. At the AGM on 31 March 2014 the meeting was aware of: 1) A quote by the contractor for $21,915 previously considered at an EGM held on 15 May 2013 for the supply and laying of materials and removal of old pavers. 2) A quote by another contractor for $11,800 for labour only. The Tribunal was not informed whether the labour included uplifting, before relaying the old pavers, or uplifting, stacking and disposing of the old pavers if new pavers were to be purchased by the respondent separately. 3) A revised or new quote from the contractor for an extended area of paving amounting to $31,277, which quote was provided following the applicant's request of the contractor to requote. 4) A further 'quote' that estimated approximately $32,000 for the tasks referred to in the contractor's quote of $31,277. 5) The fact that all lot proprietors had the ability to obtain alternative quotes to put at the meeting, as the matter had been the subject of a number of meetings from at least 2 April 2013. 12 On the statements of Mr Szabo and Ms Bellamy at the interim application hearing, the Tribunal finds that in response to the resolutions passed on 31 March 2013, the respondent accepted the contractor's quote and paid the contractor a deposit of $18,000 by cheque, which cheque was presented and paid on or about 5 May 2014. 13 On 17 April 2014, Ms Hill purportedly on behalf of the proprietors of Lots 2, 4, 5 and 6 made a written request to the respondent's strata manager for an EGM (see Exhibit 4) presumably pursuant to Sch 1 bylaw 11(3) of the ST Act. The 21 days within which the council may call the EGM had not yet passed as at the date of the interim application hearing. The respondent's strata manager wrote a responsive email on 18 April 2014 stating that an EGM would not be called because it had been agreed at the AGM held on 31 March 2014 that one would not be called on this issue (see Exhibit 6) after having spoken to various members of the council. The proponents of the EGM were able to call their own EGM after the expiration of 21 days from the date of the requisition. 14 The proponents of the EGM intended to put and have passed a resolution reversing the resolution passed at the AGM held on 31 March 2014 in effect and replacing it with a resolution that the paving work would be undertaken subject to various conditions, including the provision of certain other quotes, the provision of documentation to prove insurance, and other like requirements. In short, the purpose really was to reverse the earlier resolutions passed on 13 March 2014 at the AGM.
Consideration 15 There is no consequence for the council's refusal or failure to call an EGM pursuant to Sch 1 by-law 11(4) of the ST Act upon request, save that the proponents (if they comprise more than 50% of the aggregate unit entitlements of the respondent) may call an EGM themselves after the expiration of a period of 21 days from the date the request was made. The proponents' request or the council's refusal or failure to call an EGM does not however invalidate the otherwise valid resolutions passed on 31 March 2014; that is, to contract with the contractor for the price of $31,227 and to raise a series of special levies to cover the cost of the contractor's contract. 16 There was no evidence that members who attended at the AGM held on 31 March 2014 did not have a choice of quotes to consider and, in any event, that failure alone does not, in the Tribunal's opinion, invalidate any of the resolutions passed as asserted by the applicant. 17 Although there was no evidence that the resolutions passed at the EGM on 15 May 2013 were not valid, those resolutions became irrelevant following the resolutions passed at the AGM on 31 March 2014. 18 There is no issue before the Tribunal that the repaving fell within the respondent's duty to maintain and manage the common property and replace and renew, where necessary, as provided for in s 35 of the ST Act, and there was no evidence before the Tribunal that the need and the desire to repave was other than unanimously agreed to by all of the lot proprietors at some earlier point in time. 19 The only issues raised by the applicant were the identity of the contractor, the amount to be paid to a contractor for the work, and consequently the amount of the series of special levies. 20 On the interim application, in the Tribunal's view, there was no evidence to support the applicant's contention that the relevant resolutions passed at the AGM on 31 March 2014 were invalid. 21 As to the alleged excess of special levies, the applicant did not produce the resolutions or the invoice levies. It was not in dispute that the special levies sought to recover from the lot proprietors the quoted sum of $31,277 or thereabouts. The applicant asserted that the contractor's quote of $31,277 was excessive because there were lower quotes. It should be noted at this point that the applicant asked the contractor for the second quote which amounted to $31,277, and there were other quotes that had been considered as referred to in these reasons. Those quotes were not necessarily comparable and the Tribunal is not entitled to revisit and review the decision of the members in general meeting. The members in general meeting, having all of the quotes before them, and having had the opportunity to source their own quotes to put to the AGM, agreed unanimously on 31 March 2014 that the quoted sum of $31,277 be accepted. Further, they unanimously agreed that a series of special levies should be imposed to recover that sum from the lot proprietors. 22 At all times the applicant was free to commission his own alternative quote to put before the members at the AGM on 31 March 2014, which he did not do. 23 The applicant says that he has now received a quote for some $27,000, the evening before the interim application. This quote, he says, establishes the contractor's quote was excessive and that the resolution calling for a special levy, based upon the contractor's quote, is excessive. The Tribunal was not provided with a copy of the most recent quotation and, in any event, it is not a relevant quote of itself. It does not establish that the contractor's quote considered at the AGM on 31 March 2014 was excessive or that the series of special levies was excessive or that the AGM resolutions were invalid.
Conclusion 24 The Tribunal has concluded, on the information and evidence before it, that there was no evidential support for an interim order to be made. 25 Further, the Tribunal was aware that by 8 May 2014 the contractor's quote had been accepted and an order directing that the respondent prevent the contractor from performing the work pursuant to that contract would put the respondent in breach of the contract entered into with the contractor. No consideration of the consequences of a breach of that contract by the respondent had been considered by the applicant. 26 For all of these reasons, and particularly in light of the lack of evidence to support the allegations that the relevant resolutions were either invalid or that the special levies were excessive, pursuant to s 97 or s 99 of the ST Act, or any other provision that was referred to in the proceedings, the Tribunal refused the application for interim relief. 27 As stated earlier, as a consequence of the refusal of the interim relief, the applicant sought that the substantive consolidated proceedings be withdrawn. That application was not opposed and, on that basis, the Tribunal, having satisfied itself that the applicant had considered the position and had sought the application for withdrawal, made an order that the substantive consolidated proceeding is withdrawn.
Orders 28 The Tribunal made the following orders in the interim application: 1. The applicant's application for interim orders pursuant to s 82 of the Stata Titles Act 1985 (WA) is dismissed. 29 The Tribunal made the following orders in the substantive consolidated proceeding: |