BACROY PTY LTD and THE OWNERS OF WESTSIDE HOUSE STRATA PLAN 11137 - [2006] WASAT 153

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: BACROY PTY LTD and THE OWNERS OF WESTSIDE HOUSE STRATA PLAN 11137 [2006] WASAT 153

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 14 FEBRUARY 2006

DELIVERED : 13 JUNE 2006

FILE NO/S: CC 2299 of 2005

BETWEEN: BACROY PTY LTD
Applicant
AND
THE OWNERS OF WESTSIDE HOUSE STRATA PLAN 11137
Respondent

Catchwords:

Strata Titles Act 1985 Application under cl 13A of Sch 3 Whether applicant entitled to a right or special privilege not recorded on the strata plan

Legislation:

State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)
Strata Titles Act 1985 (WA), s 42(4), s 42(8), s 79, s 132, Sch 3, cl 13, cl 13(1)
Strata Titles Act No 39 of 1966 (WA), Pt 1 Sch 1 Bylaw 3(f)

Strata Titles Amendment Act 1995 (WA), s 90(2), s 90(3), cl 13A, cl 13A(1), cl 13B

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr M Atkinson of Counsel
Respondent: No appearance

Solicitors:

Applicant: Atkinson and Associates
Respondent: No appearance

Case(s) referred to in decision(s):

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Cane v Jones [1981] 1 All ER 533
Ho Tung v Man On Insurance Co Ltd [1902] AC 232
Les Mumme Pty Ltd and the Owners of Westside House – Strata Plan 11137 ST/2004 – 000057
Maras v Abdullah ST/2000 – 000020 dated 16 October 2000
Miller & Anor v The Owners of Marina Village Strata Plan 14 517 & Ors (WA Supreme Court Library No 920702 dated 22 December 1992)
Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692
R v Tripodi [2002] SASC 420

Case(s) also cited:

Commonwealth v Verwayen (1990) 170 CLR 394; per Deane J at 443 – 444
Ghilarducci v Ghilarducci WASC – FC 15 July 1992 Butterworth's Unreported Judgements BC9201114
Owners of Corrine Court 290 Stirling Stret, Perth Strata Plan 12821 v Shean Pty Ltd [2002] WASC 181; (2000) 23 WAR 1, at paragraphs 76 – 77
Re Compaction Systems Pty Ltd [1976] 2 NSWLR 477, at 484
Richardson v Landecker (1950) SR (NSW) 250, at 259
Shean Pty Ltd v The Owners of Corrine Court 290 Stirling Street, Perth Strata Plan 12821 [2001] WASCA 311; (2000) 25 WAR 65
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of the Tribunal's decision

The applicant applied under cl 13A of Sch 3 to the Strata Titles Act 1985 (WA) for an order which would enable the registration of a by-law granting exclusive use in respect of certain car bays to the applicant and other lot owners.
The applicant's rights had first been reflected in a 1985 resolution passed by the strata company. The resolution was made pursuant to Bylaw 3(f) of Pt 1 of Sch 1 of the 1966 Strata Titles Act in terms of which a resolution granting exclusive use was effective for that purpose. That right was preserved by the transitional provisions of the Strata Titles Act 1985 (WA) and, in particular, cl 13(1) of Sch 3 thereto. However, a further amendment by the Strata Titles Amendment Act 1995 (WA) inserted additional cl 13A and cl 13B into Sch 3 to extinguish the right 12 months after the coming into effect of the amendment unless it became registered on the strata plan. Provision was made to apply to the Strata Titles Referee for an order recognising and requiring registration within a three year period of the coming into effect of the amendment, which period could be extended by the Strata Titles Referee if it could be shown that the justice of the case required the period to be extended. Subsequently, this provision was amended by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) to delete reference to the three year period and to provide that the power previously exercised by the Strata Titles Referee be exercised by the Tribunal.
A majority of lot owners opposed the application. In the case of one of the notified parties, Les Mumme Pty Ltd, the Tribunal accepted that a requisition on the title answered by the vendor in respect of its Lot 2 and a s 43 certificate issued by the strata title manager had failed to disclose the applicant's claim to exclusive use of the car bays in proportions disproportionate to that to which it would be entitled under the unit entitlements, or at all.
The Tribunal found that the 1985 resolution was technically deficient because representatives of corporate members had not been appointed under written proxies. However, the Tribunal accepted that the principle of unanimous consent evidenced by the collective will of the parties applied, and that, as all members had acted upon the 1985 resolution as if it were valid, it should be recognised as such. The Tribunal was also prepared to assume that the presumption of regularity would apply, but on the facts, that presumption was rebutted. In view of the collective will finding, this conclusion had no consequences. For the same reason, it was unnecessary for the Tribunal to make any finding on the claim that the applicant had acquired rights by way of adverse possession. Nor was it necessary to determine, but the Tribunal took into account, the applicant's estoppel arguments, to the extent that issues of unconscionability were raised, in its consideration of the justice of the case.
As it was otherwise common cause that the procedures under cl 13A had been followed, the Tribunal turned to consider whether the justice of the case required that it accept the application, as it was required to do under that clause. The Tribunal analysed the purpose of the various amendments which had been effected over time to Sch 3 and concluded that it was to achieve a position that prospective purchasers would be entitled to rely on the state of the register.
The Tribunal referred to authority requiring that the exercise of a discretion to extend time be measured against the purpose of the enactment authorising the enactment of an extension of the limitation period. In applying that requirement to the facts of the case, the Tribunal concluded that the justice of the case did not warrant the acceptance of the application outside the limitation period, and accordingly made an order dismissing the application.

The application

The applicant is the registered proprietor of Lot 6 on strata plan 1137. The strata plan comprises of Lots 1 6 and common property which includes a number of car bays. The parcel is known as "Westside House" and is situated at 72 Kings Park Road, West Perth. Westside House is a sixstorey office building.
The strata plan was registered on 16 December 1982. The strata plan showed 33 car bays on the lower ground floor, each bearing the annotation "car parking for use lot". In some cases, the lot number has been inserted but there are some bays which are not shown as allocated to any particular lot.
By virtue of s 42(8) of the Strata Titles Act 1985 (WA) (1985 Act), these notations do not confer any exclusive use and enjoyment of, or special privileges in respect of, the common property or any part of it.
On 15 December 1999, a plan of resubdivision of Lots 1 6 inclusive and common property on strata plan 11137 was lodged but registration was never effected. On 23 July 2004, the Strata Titles Referee (Referee) made an order invalidating a resolution of the respondent dated 16 November 1998 purporting to reflect the unanimous consent to the proposed resubdivision and to the proposed reallocation of unit entitlements so that the proposed resubdivision could not proceed see Les Mumme Pty Ltd and the Owners of Westside House  Strata Plan 11137 ST/2004 000057.
On 16 April 2005, the applicant lodged an application with the State Administrative Tribunal (SAT) seeking the following order:
"1.An order pursuant to Schedule 3 clause 13A(8), that the Owners of Westside House strata plan 11137 shall cause the following by law to be recorded on strata plan 11137 as a Schedule 1 by-law that may only be amended, added to or repealed by a resolution without dissent, not later than three months from the date of this Order:
'In accordance with approvals granted by the Perth City Council and the Town Planning Board, the Body Corporate shall grant to each proprietor and his, her, or its transferees assigns and successors in title of his, hers or their respective strata title units the subject of Strata Plan 11137 situated at 72 Kings Park Road, West Perth a licence to exclusive use and enjoyment of that portion of the common property comprising car parking bays specified opposite their respective lot numbers set out in the attached schedule for an indefinite period or until the destruction of the building comprising the strata plan'; and
2.This order shall not cease to have any force or effect upon the expiration of two years next exceeding the making of the Order."
The terms of the order quoted within 1 above is in accordance with a resolution of the respondent dated 28 May 1985 and an attached schedule allocating the car bays set out in a copy of the lower ground floor of the strata plan as registered in 1982, but with each car bay numbered from 1 to 33, so that the schedule and plan identify the particular bay allocated to each lot (the 1985 resolution). The effect of this resolution is significant to the outcome of the application and is considered further below.
The applicant contends that the 1985 resolution was effective under the Strata Titles Act No 39 of 1966 (WA) (the 1966 Act) to grant exclusive use of the car parking bays to lot owners in accordance with the schedule attached to it. Further, that the effect of the transitional provisions under the 1985 Act and subsequent amendments to Sch 3 thereof effected by the Strata Titles Amendment Act 1995 (WA) (the 1995 Act) is to enable the applicant to apply to SAT for relief in accordance with the order sought above.
The lot owners are divided on the issue and it is for that reason that the respondent has been unable to participate in the proceedings. The application was, however, served on all interested parties in accordance with s 79 of the 1985 Act. The owner of Lot 1 supports the application. The owners of Lots 2, 3, 4 and 5 oppose it.
The applicant and Les Mumme Pty Ltd (Les Mumme) have filed Statements of Issues Facts and Contentions, and have made extensive written and oral submissions. Those supporting and opposing the application have effectively adopted the Statements of Issues Facts and Contentions made on behalf of the applicant or Les Mumme as the case may be. Prior to the filing of the respective Statements of Issues Facts and Contentions, responses were filed by the proprietors of Lots 1, 3 and 4.

Issues for determination

The issues raised by the applicant and Les Mumme can be distilled into the following main topics, having regard to the statutory regime, and the facts, as set out below:
1.Does the justice of the case warrant acceptance of the application?
2.Is the 1985 resolution effective to grant exclusive use rights?
3.If 2 above is determined in the negative, has the applicant acquired rights or special privileges by adverse possession or by operation of an estoppel?
4.Have the requirements of cl 13A been met such that the applicant is entitled to an order as sought?

The factual background in context of the changing statutory regime

The applicant entered into a contract to purchase Lot 6 from the original proprietor, Mowbray Pty Ltd (Mowbray). Special condition 10 of the contract recorded Mowbray's undertaking to provide three car bays, in addition to those to which the applicant would be entitled in proportion to unit entitlement, at a cost of $4500 each. A further car bay was to be provided "at cost".
The strata plan registered on 16 December 1982 reflected that the owner of Lot 1 was entitled to the use of eight of the 33 car lots, that is, three lots in excess of the car bays to which the owner of Lot 1 would have been entitled based on a unit entitlement of 154 units of a total of 1000 units. The estate in Lot 1 was transferred to the applicant, then as a co-owner with Dolf Pty Ltd, on 6 January 1983.
On 28 May 1985, the respondent passed the 1985 resolution, referred to above, granting the respective lot owners a licence for the unrestricted right to exclusive use in the enjoyment of the car parking bays as identified in the attached Schedule "for an indefinite period or until the destruction of the building comprising the strata plan, such grant to be determined only upon the unanimous resolution of the proprietors comprising the body corporate".
The registration of the strata plan had been effected pursuant to the 1966 Act, and Pt 1 Sch 1 By-law 3(f) operating thereunder provided that the company might grant to a proprietor the right to an exclusive use and enjoyment of common property, or special privileges in respect thereof, and any such grant was to be determinable on reasonable notice unless the company, by unanimous resolution, otherwise resolved. Accordingly, subject to any issue of its validity, the 1985 resolution on its face granted exclusive use of the car bays to the respective lot owners, which licence could only be terminated by unanimous resolution.
Just over one month later, on 30 June 1985, the 1985 Act came into force and the 1966 Act was repealed. Section 132 of the 1985 Act provided that Sch 3 has effect and cl 13(1) thereof provided that, where immediately before the appointed day, being the day on which the ST Act came into operation, a proprietor of a former lot was entitled, pursuant to former By-law 3(f), to a right of exclusive use in the enjoyment of, or special privileges in respect of, any of the former common property, the proprietor for the time being of the lot shall continue to be entitled to that right or those special privileges in accordance with the terms of the grant and any such grant shall be determinable on reasonable notice unless the company otherwise resolved by unanimous resolution. Accordingly, if the 1985 resolution is valid, the rights of exclusive use of the car bays granted to the respective lot owners continued.
On 14 April 1996, the 1995 Act came into effect and inserted cl 13A and cl 13B into Sch 3 of the ST Act. Those clauses provided, in summary, as follows:
By cl 13A(1), where immediately before the commencement of s 90(2) of the 1995 Act a proprietor of a lot was entitled to any right or special privilege by operation of cl 13, but that right or special privilege is not recorded on the strata plan, that right or special privilege is extinguished at the expiration of 12 months after that commencement except to the extent that it is provided for by a by-law or order made under the clause and recorded by the Registrar of Titles under s 42(4) of the ST Act.
By subclause (2), a proprietor of a lot who considers that he is entitled to a right or special privilege that is not recorded on the strata plan may serve notice on the strata company requiring it to make a by-law, in terms specified in the notice, confirming that right or special privilege. By subclause (5), where a strata company, on which a requisition has been served under subclause (2) fails to make a by-law in accordance with the requisition within one month after the service thereof, the proprietor who made the requisition may apply to the Referee for an order under subclause (8). By subclause (7), an application under subclause (5) cannot be accepted after a period of three years subject to the power to extend that period if the proprietor applies for an extension and satisfies the Referee that the justice of the case requires that the period be extended.
Subclause (8) empowered the Referee to make an order that the applicant was entitled to such rights or special privileges as may be specified in the order, if the Referee was of the opinion that the applicant was entitled to a right or special privilege by operation of cl 13 but that the right or special privilege was not recorded in the strata plan.
Clause 13B obliged a strata company for a scheme to give notice in the prescribed form to the proprietor of each lot not later than six months after the said commencement, which prescribed form was required to state the effect of cl 13A(1) and advise the proprietor affected to take action under that clause for protection of his rights as soon as practicable. Subclause 13B(4) provided that a failure of a strata company to give notice under this clause does not affect the operation of cl 13A(1) but is a ground for the grant of an extension of time under cl 13A(7).
Schedule 3 cl 13A and cl 13B have since been amended by the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) so that all previous references to the Referee are now references to the State Administrative Tribunal (the Tribunal). Further, subclause 13A(7) was amended to delete the reference to a three year time limit. It is now simply provided that an application under subclause (5) cannot be accepted unless the proprietor satisfies the Tribunal that the justice of the case requires that the application be accepted.
The respondent failed to provide the proprietors of the lots in the Scheme with the required notice under cl 13B.
No evidence has been provided as to precisely what steps were being taken, if any, concerning the preservation of the applicants' and other lot owners' rights in relation to the exclusive use of the car bays during or about the time when the 1995 Act came into force. Les Mumme has provided in its documents a copy of the notice of the annual general meeting of the respondent held on 8 September 1997, which included an agenda item for the discussion of amendments to by-laws to facilitate formal allocation of car bays. The minutes of that meeting show that there was considerable discussion with regards to exclusive use of the car bays and their commercial value, and it was resolved that quotations be obtained from surveyors. That suggests, given what occurred later, that consideration was then being given to a resubdivision of the lots incorporating the car bays into the relevant lots. The minutes of the annual general meeting held on 31 August 1998 reflects that the meeting discussed exclusive use or the alternative of a resubdivision "so the individual units had ownership of the car bays". It was resolved to obtain quotations for the resubdivision, and that an extraordinary general meeting be convened for the unanimous resolution of resubdivision and reallocation of unit entitlement to be put to the meeting.
The minutes of an extraordinary general meeting held on 16 November 1998 reflects that those present and for whom proxies had been provided, voted unanimously in favour of the proposed resubdivision and reallocation of unit entitlements. The proprietors of Lots 1 and 2 were not present and were required to vote within a 28 day period thereafter. Their failure to do so within the 28 day period was one of the reasons for the Referee subsequently invalidating the resolution. The votes of the absent proprietors had to be signed by 13 December 1998 but were only signed two days later.
It is apparent that the invalidity of the 1998 resolution was not appreciated because, on the strength of it, application was made for resubdivision. Nevertheless, if at that time, as appears to be the case, all of the then proprietors of the lots were in favour of the resubdivision, it was not explained why nothing was done to address the failure to effect registration. On 28 June 2002, Les Mumme became the proprietor of Lot 1. Prior to settlement, on 19 June 2002, the respondent's strata manager, then called Blackburne Real Estate, provided a s 43 certificate leaving blank the section in which it was required to provide details of any transfer, lease or other disposition, or exclusive use by-law in connection with the common property which has not been registered. On 25 June 2002, Les Mumme received the answers to requisitions on title from the vendor of Lot 2 which answered "no" to the question of whether anybody was in occupation of the land under any or any alleged lease or licence.

On 28 June 2002, Les Mumme wrote to Blackburne Real Estate advising that "we have recently purchased the first floor of the property situated at 72 Kings Park Road, West Perth and will be moving into the building on 12 July 2002". Les Mumme went on to explain that difficulties had been encountered and they wished to find out their obligations and rights in regard to the property and other owners and tenants. Information was requested about a range of issues including the car parking. There appears to have been no response to that letter.
On 24 July 2002, Anderson Smith Consulting wrote to Les Mumme advising that it was acting under instructions from Blackburne Real Estate, the strata manager of the respondent. In that letter, it stated:
"Being a registered proprietor of a lot in the above strata title building you would be aware that the resubdivision of the above strata plan is now to be lodged with the Department of Land Administration.
We enclose a form Disposition On Resubdivision and request that you sign the form we indicated and return it to this office."
Les Mumme then wrote to the Department of Land and Administration on 14 August 2002 requesting clarification concerning the car parking. On 14 August 2002, a further letter was addressed to the strata managers, now called Blackburne & Joyce Real Estate, requesting information about the car parking. By letter dated 15 August 2002, Blackburne & Joyce Real Estate responded advising:
"We refer to your letter dated 14 August 2002 and advise the following:
1.The car parking is currently common property until the registration of the resubdivision.
2.No owner has legal title to any particular area of the car park although they may have acclaim for the use of the area which would require a legal interpretation.
3.The current unit entitlement is attached for your information.
It is unfortunate that you did not seek advice from the strata company manager, Mrs Veronica Baker, prior to purchasing as the lodged documentation for the resubdivision would have been explained in full to you."
It is noted that the s 43 certificate, which left blank the section requiring details to be provided of any disposition or exclusive use by-law in connection with the common property, was signed by Blackburne Real Estate, for the respondent, and the signatory appears to be V Baker.
On 21 August 2002, the Department of Land Administration responded to Les Mumme advising that no exclusive use by-laws had been registered, that a plan had been lodged proposing a resubdivision of the common property but that until the plan was registered, the land remained as common property.
Les Mumme never signed the Disposition form as requested by Anderson Smith Consulting, and subsequently applied to the Referee for an order invalidating the 1998 resolution, which application, as mentioned above, was successful.
It was common cause that after receipt of the Referee's decision invalidating the 1998 resolution, the applicant gave notice under cl 13A of Sch 3 to the respondent requiring it to make a by-law in terms of the 1985 resolution and that the respondent has not done so.
The applicant has undertaken to pay all the costs incurred by the respondent in complying with the 1985 resolution.
It is common cause that the lot owners have used the car bays since 1985 in accordance with the 1985 resolution. No other form of consent to occupy the car parking has been granted by the respondent to any of the lot owners. Nevertheless, the documentation shows that there has been an issue about the use of the car parking. Les Mumme, at different times, requested both Blackburne & Joyce Real Estate and the applicant to provide documentation or evidence supporting the claim to use of the car parking. By letter dated 30 August 2002, Blackburne & Joyce Real Estate advised that it did not hold any documentation or evidence to support any owner's claim for the use of a particular area of the car park. That statement is not correct because the documentation shows that the strata managers had the minute of the Extraordinary General Meeting held on 16 November 1998 and a copy of the resolution. In a facsimile dated 3 April 2003, the then solicitors for the applicant advised that "it is not Mr John Jansen's (the representative of the applicant) intention to provide to you copies of the documentation confirming his entitlement to the additional car parking bays".
It is against the above background that the issues must be determined.

Issues for determination

The 1985 resolution

The 1985 resolution reflects that those present were Mr M Povey (Units 1 and 2), Mr J Cooke (Unit 3), Mr R East (Unit 4), Mr R Nankivell (Unit 5) and Mr R Stewart (Unit 6). Under the heading "Proxies", it is stated that Messrs Cooke and Nankivell confirmed the holding of proxies on behalf of the respective owners.
The documentation provided includes certificates of title in respect of the lots which show that Lots 1 and 2 were then owned by Interwest Ltd, Lot 4 was owned by Kirkland Nominees Pty Ltd and JPP Nominees Pty Ltd, and Lot 6 was owned by Dolf Pty Ltd, Bacroy Pty Ltd and Spottiswoods Pty Ltd. The minute does not reflect that any of the above companies had provided "an instrument appointing a proxy … in writing under the hand of the appointor or his attorney" as required in terms of By-law 7 under the 1966 Act. By contrast, the minute reflects that Messrs Cooke and Nankivell "confirmed the holding of proxies" for Units 3 and 5 respectively.
The applicant has filed written statements by Mr Mark Povey and by Mr Ross East who each state that they were the person "nominated" by the respective companies to attend the meeting. That, in my view, is insufficient.
The applicant contends that, in any event, the presumption of regularity should apply. I assume, for present purposes, that the presumption would apply, but even if it does, I do not consider that, in relation to private documents in the nature of a resolution, it is an irrebuttable presumption. The evidence shows that the representatives mentioned were not properly authorised in accordance with the by-laws. I accordingly consider that the 1985 resolution is technically defective, and unless otherwise saved, as discussed further below, is invalid.
The applicant then contends that the expression of the collective will of the lot owners since 1985, and at least until 2002, should overcome any technical deficiency in the resolution relying upon Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 and Ho Tung v Man On Insurance Co Ltd [1902] AC 232. Further, the applicant contends that members can change a company's constitution by an agreement outside a meeting, even if the relevant companies' legislation was to the effect that alterations could only be made by special resolution: Cane v Jones [1981] 1 All ER 533.
On the face of it, there appears to be no reason why these principles should not apply to a corporation established under either the 1966 Act or the 1985 Act. It is apparent that the lot owners accepted the validity of the 1985 resolution and acted on it until some time prior to the 1998 resolution. Further, although the 1998 resolution was intended to result in a merger of the car bays into the respective lots, until a plan of resubdivision was registered, the continued use of the car bays to the present time has been pursuant to the 1985 resolution. The 1998 resolution effected some change in the allocation of car bays, although the applicant retained the same number overall, and it was premised upon a change in unit entitlement which increased the applicant's entitlement from 15.4% to 18%, thereby increasing the share of expenses to be paid by the applicant. Although a formal proxy may not have been provided, it is obvious that the companies represented by the individuals concerned had every opportunity to investigate the basis for car bay allocation.
In these circumstances, it is not necessary for me to determine the argument based on estoppel. To the extent that the argument raises issues of unconscionability, that is obviously a relevant consideration in the weighing of the justice of the case.
The applicant further contends that it has required a right to exclusive use of the car bays by way of adverse possession. The applicant argues that Maras v Abdullah ST/2000 – 000020 dated 16 October 2000 is incorrectly decided and refers to criticisms of that case raised by Mr J Gladstone, the Commissioner of Titles, in a paper dated 13 October 2005 delivered at a Law Society seminar. It is not necessary for me to determine that issue because the 1985 resolution has effect by reason of the Tribunal's findings on the collective will principle.

The justice of the case

It is necessary to consider more closely the purpose and effect of cl 13A of Sch 3 to the ST Act and as it has been amended in stages subsequent to the 1985 Act.
Subclause (1) is a limitation Act under which an existing right or special privilege is extinguished unless the application comes within the requirements of subclause (7). Initially, that meant that an application had to be made to cause the applicant's right or special privilege to become registered through the mechanism of cl 13A, within a period of three years from the date of commencement of s 90(3) of the 1995 Act, that is, within one year of 14 April 1996.
Thus, following the repeal of the 1966 Act by the 1985 Act, there had been for a period of some ten years a continuation of unregistered rights or privileges granted under by-law 3(f) under the 1966 Act. By introducing, in 1995, a 12 month extinguishing period, but subject to a right to apply within three years to the Referee for an appropriate order, it can be concluded that the legislature intended to bring some finality to unregistered rights or privileges. That limit could be extended by making an application to the Referee provided the Referee could be satisfied that the justice of the case required.
The amendment to subclause (7) affected by the State Administrative Tribunal (Conferral of Jurisdiction and Amendment) Act 2004 (WA) removed the reference to the three year period. That was understandable, because the three year period had well and truly elapsed by 2004, so that all that needed to be preserved was the general discretion to accept the application if the justice of the case required. By 2004, it could be expected that generally all unregistered rights or privileges had been extinguished. It is obvious that, with the passage of time, there would be fewer and fewer cases which would meet "the justice of the case". The ultimate and obvious purpose of the legislature has therefore been to achieve a situation where reliance can be placed on the state of register when considering the purchase of a lot in a strata title or survey strata title scheme.
In R v Tripodi [2002] SASC 420, the Full Bench of the Supreme Court of South Australia, considered the expression "the interest of justice" in a statutory context, and said, at par 33/34:
"The expression 'the interest of justice' is intended to cater for a range of situations, some of which may be of peripheral importance to a parliamentary purpose.
… The expression chosen by Parliament 'the interest of justice' is an expression that is relatively wellknown and, depending on the context, is one that suggests that a wide range of factors, including matters of the kind identified by the Judge as relevant."
In the context of the interpretation of a limitation provision, in which the court had a discretion, Justice McHugh, in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, at 551, stated:
"With great respect to their Honours, s 31 should not be read as giving an applicant a presumptive right to an order once he or she satisfies the two conditions laid down in s 31(2) of the Act. An applicant for an extension of time who satisfies those conditions is entitled to ask the court to exercise its discretion in his or her favour. The applicant still bears the onus of showing that the justice of the case requires the exercise of the discretion in his or her favour.
(at 553/4) … whether an injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the state is best served by the limitation period in question.
… (at 554) The object of the discretion, to use the words of Dixon CJ (Klein v Domus Pty Ltd (1963) 109 CLR 467 at 473) in a similar context, 'is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case'. In determining what the justice of the case requires, the Judge is entitled to look at every relevant fact and circumstance that does not travel beyond the scope and purpose of the enactment authorising an extension of the limitation period."
It is in this context that the justice of the case must be determined.
In favour of the applicant, consideration has been paid to the original owner for securing additional parking bays. Les Mumme points out that the consideration was not payable to the strata company, and no benefit was received from which all proprietors could benefit.
Although there was some debate about the basis of allocation of car bays prior to the 1998 resolution, the proprietors agreed to balance that by an adjustment to the unit entitlements. Although that is no longer achievable under the terms of the order sought, the applicant has undertaken to pay all costs relating to the car bays. No doubt that is a matter which could be addressed in the terms of an appropriate order.
A further factor is that the respondent failed to give the applicant and each other proprietor notice of the effect of the new cl 13A, and of the need to take steps to protect any unregistered rights or privileges.
On the other hand, it is necessary to give consideration to the position of Les Mumme and those notified parties who also now oppose the application. Dr BT Morrison, the owner of Lot 4, who had previously voted by his proxy in favour of the 1998 resolution, stated in his response:
"1.The majority of present owners have voted to oppose the subdivision of car parking space which unfairly allocates car bays to the applicant.
2.The applicant despite many requests has never produced any legal documentation to support his claims to extra car bays.
3.The parking area is common space to be allocated by percentage ownership in the building.
4.Surely current owners [sic] wishes should decide the issue in the absence of any legal documentation to support the applicant."
Reference was made above to the failure of the strata manager and the refusal of the applicant to provide Les Mumme with documentary evidence supporting the basis of car bay allocation.
This, at least, raises some question as to the extent to which lot owners were properly informed or indeed given any information about the 1985 resolution when voting on the 1998 resolution.
In relation to Les Mumme, there was no information provided to it which indicated that the applicant was entitled to a disproportionate share of the car bays. To the contrary, the vendor's answers to requisitions on title advised that the vendor was not aware that anybody was in occupation of the land under any or any alleged lease or licence. The s 43 certificate issued by the strata manager gave no details of any transfer, lease or other disposition, or exclusive use bylaw.
The applicant points to authority in the form of Miller & Anor v The Owners of Marina Village Strata Plan 14 517 & Ors (WA Supreme Court Library No 920702 dated 22 December 1992), to assert that the respondent had a duty to pursue the registration of the resubdivision plan pursuant to the 1998 resolution and that the applicant should not be held responsible for the delay which ensued. Further, the applicant points to the respondent's failure to give the notice required under cl 13B of Sch 3 to the 1985 Act. Both those points are obviously well made, but given the amount of debate which took place prior to the 1998 resolution and the obvious importance of the matter to the applicant, it is surprising that the applicant seems to have done very little to monitor the progress subsequent to the 1998 resolution. It is noted that it was the Referee in the earlier decision commenced by Les Mumme ST/2004 – 000057 dated 23 July 2004, who adverted to the effect of Sch 3, that the present applicant made no submissions in those proceedings and commenced the present application only after the above order. I accept the explanation given for the applicant that his solicitors did not then have access to the records which showed that the votes to be received within 28 days of the meeting were actually made after that period. But the fact of the matter is that it was within the applicant's power to investigate these issues more thoroughly at an earlier time. The applicant appears to have taken a position that as the 1998 resolution had been passed, it needed to do nothing. In adopting that position, the applicant was taking a risk, because if, as occurred, Les Mumme succeeded in its attack on the 1998 resolution, time was continuing to run and the applicant would have the ultimate responsibility of explaining delay and persuading this Tribunal to exercise its discretion to accept the application. The onus is on the applicant to satisfy the Tribunal that grounds exist for exercising the discretion in its favour: Brisbane South Regional Health Authority, above, at 547.
The prejudice suffered by Les Mumme in this matter is precisely the prejudice which legislature has sought to avoid by the amendments it has effected to Sch 3 over time. While an argument akin to estoppel may apply to the other notified persons who have opposed the application, it does not, in my view, apply to Les Mumme. Short of taking the law into its own hands, there was little that Les Mumme could do but to use the car parking in accordance with the arrangements virtually forced upon it, pending its attempts to obtain clarification and ultimately to challenge the basis on which the applicant has asserted its rights.
It is necessary for the Tribunal to achieve a balance between the interests of the parties, having regard to the rationales for the existence of the limitation period. Les Mumme cannot be criticised for the steps which it has taken, yet it finds that the applicant seeks to have common property, in which it has an undivided share, fettered in favour of the applicant, without any notice to it. By contrast, the applicant has done little, until the making of this application, to protect its interests. Indeed, the applicant made a deliberate choice, reflected in the facsimile dated 3 April 2003, not to provide the applicant with documentation supporting the basis of its claim to entitlement of additional car bays. The existing arguments of the applicant were raised only after the Strata Title Referee's decision in 2004 invalidating the 1998 resolution. It is evident that the majority of owners were confused as to the basis of claim.
The applicant bears the onus of satisfying the Tribunal that the justice of the case requires that the application be accepted, yet there is no evidence which explains what occurred between the application for resubdivision being lodged on 15 December 1999 and the letter sent to Les Mumme by Anderson Smith Consulting, on behalf of the strata manager, dated 24 July 2002 requesting that a disposition on resubdivision form be signed. A letter from solicitors, Franklyn Simon Wheatley dated 10 September 2002 addressed on behalf of the respondent strata company to Blackburne Joyce Real Estate, states that the finalisation of the plan of resubdivision had been left in that firm's hands to be finalised but that it appears that it had not been proceeded with until August 2002. It is apparent that the respondent and the applicant paid little regard to the issue for a very significant period.

In these circumstances, the Tribunal is unable to conclude that the justice of the case requires it to accept the application.

Conclusion

For the above reasons, the Tribunal concludes that the application should not be accepted. It is pertinent to note that the case has been conducted on the basis that, in order to decide whether or not to accept the application, all the evidence necessary for a decision on the merits would, in any event, have to be put before the Tribunal. In other cases, it may be more appropriate for a preliminary hearing with more limited facts to determine that question first, so that if that application succeeds, an application dealing fully with the merits can be filed.
On the basis of the Tribunal's above findings, and as the Tribunal has determined not to accept the application, it follows that the applicant's rights to exclusive use of the car parking bays in accordance with the allocation reflected in the 1985 resolution are extinguished.
The Tribunal, accordingly, orders:
1.The application is dismissed.

I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER