Bamblett and Anor and the Owners of Strathearn Strata Plan 1082

[2005] WASAT 20

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985

CITATION:   BAMBLETT & ANOR and THE OWNERS OF STRATHEARN STRATA PLAN 1082 [2005] WASAT 20

MEMBER:   MR C RAYMOND (SENIOR MEMBER)

HEARD:   ON THE PAPERS

DELIVERED          :   11 MARCH 2005

FILE NO/S:   CC 161 of 2005

BETWEEN:   KEVIN TIMOTHY BAMBLETT

DAVID GREIG IRONSIDE
Applicants

AND

THE OWNERS OF STRATHEARN STRATA PLAN 1082
Respondent

Catchwords:

Strata titles - Application for interim order - Requirement for urgent circumstances to be shown

Legislation:

Strata Titles Act 1966 (WA)

Strata Titles Act 1985 (WA), s 97(1), s 82, s 71(7)

Result:

Application for interim order dismissed

Category:    B

Representation:

Counsel:

Applicants:     Self Represented

Respondent:     Self Represented

Solicitors:

Applicants:    

Respondent:    

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

Nil

Case(s) also cited:

Nil

MR C RAYMOND (SENIOR MEMBER):

REASONS FOR DECISIONS

Issue

1. The grant of interim relief restraining the use of funds and an order that the funds remain free for maintenance works.

Applicants

1. The applicants are Kevin Timothy Bamblett and David Greig Ironside of unit 7 and unit 21 respectively, 16 Kings Park Avenue, Crawley, Western Australia.

2. The address of the strata company recorded with the Registrar of Titles is 14 Kings Park Avenue.  The applicants have not filed records of certificates of title establishing that they are the owners of any particular lots on strata plan 1082.  For present purposes, as the application is for interim relief and the applicants' standing has not been challenged, I assume that they are the proprietors of lots on strata plan 1082.

Strata Plan and Relevant Act

1. The strata plan was registered on 14 January 1972 pursuant to the Strata Titles Act 1966 (WA)("1966 Act").

2. In 1985, the 1966 Act was repealed and replaced by the Strata Titles Act 1985 (WA)("the Act").

Parcel

1. The parcel consists of 46 lots within a 24-storey residential building.  The address for service of notices on the company is given as 14 Kings Park Avenue, Crawley.

2. Part of the common property includes an entrance foyer.

Orders Sought

1. The applicants' substantive application is for an order under s 97(1) of the Act. An application has also been made for interim relief pursuant to s 82 of the Act.

Principal Orders

1. The principal orders sought are:

   "1.  The resolution purported to have been passed by the persons present at the meeting of the Corporate (sic) of the owners of 'Strathearn' strata plan 1082 on 20 January 2005, namely,

   'That a sum from reserve levies of $150000 be set aside to renew the foyer and the entrance of the ground floor of 'Strathearn' be invalidated.'

   2.    The costs of and incidental to the application be paid by the body corporate to the applicants."

2. It should be noted that the relief sought under par 2 above is beyond the power of the Tribunal which can only order costs in limited circumstances which do not apply in this instance s 71(7).

Interim Order

1. The interim order sought is in the following terms:

   "1. That the body corporate, the owners of 'Strathearn', and its officers, agents and servants be restrained from expending, permitting or applying any part of the $150000 pursuant to the resolution complained of in the application under s 97(1);

   2.    That the said $150000 remain free for maintenance works;

   3.    That such order remain in force until a substantive order is issued."

The Factual Background

1. An extraordinary general meeting ("EGM") took place on 18 November 2004 but was adjourned because all items of business had not been finalised.  A copy of the minutes of that meeting has not been provided.

2. A notice of an extraordinary meeting to be held on 20 January 2005 was subsequently given, on a date which is not apparent from the papers.  The agenda reflected that business arising from the minutes of the meeting on 18 November 2004 would be dealt with.  Other items of business were also identified and three proposed motions were included in the notice.

3. The minutes of what appears to be a meeting of the council dated 13 January 2005 reflects that advice had been received that at the adjourned meeting, only the agenda of the original meeting could be dealt with, so that the additional motions would have to be withdrawn and a new EGM would be needed to deal with the subject matter thereof, which related to the façade of the building.  The minutes reflect that there was a discussion about calling a further EGM which would take place after the adjourned EGM.

4. It could be inferred on this evidence that no notice of the further EGM was given until some date after 13 January 2005, ie seven or less days prior to the date on which it was intended to hold the new EGM.  The applicants state, and I accept for present purposes, that notice was only given of the further EGM some 10 hours prior to the meeting.

5. The notice of the new EGM to take place on 20 January 2005 included two proposed motions dealing with the façade and a further motion 3 "that a sum from reserved levies for $150000 be set aside to renew the foyer and entrance of the ground floor of 'Strathearn'."

6. The business of the adjourned meeting was concluded at the first meeting on 20 January 2005.  Immediately after that meeting was concluded, the new EGM commenced.  The minutes of that meeting reflect that the applicant, David Ironside, spoke against motion no 3 relating to the setting aside of funds for the foyer.  He pointed out to the meeting that 14 days' notice to owners had not been given and that non‑residential owners were not aware of the agenda item.  Further, he said the motion implied a building "upgrade" which would require the unanimous approval of all owners.  The chairman also spoke against the motion on a different basis by pointing out that funds had been set aside for other matters and he therefore queried how $150000 could be set aside.  Supporters of the motion emphasised that 'to set aside' was to give an indication of budget".

7. The motion was put to the meeting and was carried with 20 votes in favour and 15 against.

The Applicants' Case

1. The proposed resolution is attacked by the applicants on two grounds.  Firstly, that less than 14 days' notice of the motion was given, and, secondly, that the resolution was ultra vires because the Act does not authorise upgrades.

Process in the Tribunal

1. The application was assessed by me and in consequence of that assessment, the parties were given notice of a directions hearing to be heard on 3 March 2005 at 10.00 am.

2. The applicants responded to the notice of set down by letter dated 23 February 2005 requesting that it be postponed to the second week of March because one of the applicants was due to undergo surgery on 25 February 2005. The applicants further submitted that, on procedural grounds alone, "it would be impossible to uphold the legality of a resolution based upon a motion of which informal notice was given to members less than 12 hours before a meeting already convened". They emphasised that they had proceeded on the basis that the Tribunal could be expected to endorse principles enunciated by DOLA ‑ being a reference to a letter from DOLA, as it was then known, to the applicant, Mr Bamblett, dated 19 September 2003, in which it was stated that upgrades must be sanctioned by unanimous resolution of all owners, that the Act does not allow for upgrades and that the Strata Titles Referee had expressed the opinion that if all owners agree, there should be no concerns. They stated that there was a risk that funds could be committed to preparation of a concept "as has happened before". No particulars were given.

3. A staff member of the Tribunal responded to the applicants' request for an adjournment by letter dated 28 February 2005.  It was pointed out that, as a joint application had been made, it would be possible for the other applicant to attend the directions hearing.  Further, if the matter was adjourned, directions hearings were then being listed for dates in April and that it would therefore be in the interest of the applicants that one of them attend in an endeavour to advance the matter, although it was stated that could only "occur if the one of you attending is authorised by the other, otherwise, the matter may (my italics for emphasis) have to be adjourned".

4. By facsimile letter signed by both applicants, the Tribunal was advised: "Mr Bamblett has undergone operation.  I do not have authority to act on his behalf.  As you indicate, the hearing listed for 3rd March, '05 will have to be adjourned".

5. The applicants proceeded in the letter to emphasise that they believed that the Tribunal was empowered to grant an interim order on the basis of what was already before it.

6. The applicants in the earlier letter of 23 February 2005 queried the process being followed by the Tribunal in setting down the matter for a directions hearing and pointed out that the respondent had consented to orders being made in terms of the two applications.  This was a reference to a letter from the chairman of the council of owners dated 14 February 2005, in which Mr Allan Green, the chairman, stated he had no objections to the order sought.

7. As stated above Mr Green had spoken against the resolution at the EGM.  The application had cited the respondent as the chairman of the Body Corporate of Strathearn ‑ Strata Plan 1082.  Tribunal staff interpreted this as a citation of the strata company as the respondent, and this has been reflected in all correspondence and notices from the Tribunal.

8. On the morning of 3 March 2005, Mr Paul Reid, representing the strata company, enquired of the Tribunal staff whether it was necessary to attend the directions hearing as the applicant, Mr Ironside, had telephoned him and advised him he had received a letter from the Tribunal stating that the directions hearing was vacated.

9. Mr Reid was advised by the Tribunal that he should attend the hearing.  A Tribunal staff member also telephoned Mr Ironside and advised that the directions hearing was proceeding.

10. Notwithstanding the call to Mr Ironside, he did not attend the directions hearing.  Mr Reid did attend.  He made clear that he was the strata manager engaged by the company and that he was neutral in relation to the application.  He indicated that it was his view that the resolution was unlawful.

11. It was explained to Mr Reid that there were two areas of concern in relation to the interim order and that it would be helpful to the Tribunal if he could clarify those matters.

12. The first issue was what was meant by the resolution which had been passed and which was the subject of the proceedings.  The resolution referred to money being set aside "to renew" the foyer.  Without more information, it was difficult to know whether that constituted repairs and maintenance, or even repairs and maintenance in part.  There was an issue as to where to draw the line.  If there was no repairs and maintenance involved and it was simply an upgrade, that would open the issue which had been raised by the applicants as to whether an upgrade could be carried on with anything less than a unanimous vote.  The second issue was whether there was any risk that anything would be done at this stage given that all that the resolution referred to was the setting aside of funds and that the supporters of the motion had advised that this constituted no more than giving the indication of a budget.

13. Mr Reid was not able to provide any particulars in relation to the first issue.  In relation to the second issue, he said that there was nothing that he was aware of which suggested that anything was about to be done with the funds.  He expressed the view that he did not see any urgency in the situation.

Considerations

1. The applicants have insisted that the matter be decided on the papers, submitting that there is sufficient information before the Tribunal to do so.

2. Because neither applicant attended the directions hearing, it was not appropriate to consider issuing directions in relation to the substantive application.  The attempt to get additional information at the directions hearing could not prejudice the applicants, given the concerns which the Tribunal had about the application as it stood on the papers.

3. An interim order should only be made under s 82 of the Act if the Tribunal is satisfied on reasonable grounds that urgent circumstances warrant the issue of the order. It is inconsistent with that sense of urgency to contemplate that the hearing be adjourned until some date in April when the applicants, and after notice is given, lot owners, would presumably be able to appear. In any event, while they may have been able to give some information in relation to the contemplated foyer works, it seems unlikely that they would be any better informed than the strata manager about plans to use any funds set aside for that purpose.

4. In the circumstances, the Tribunal is not satisfied that there is any urgency shown warranting the relief claimed.  There is no comfort to be drawn from the chairman of the company having filed a notice that he has no objection to orders being made in terms of the application.  As the minutes reflect, the chairman regarded the resolution passed as being invalid.  Issue must be joined with the 20 owners who voted in favour of the resolution, and the Tribunal will ensure they are given notice of the application and are invited to lodge submissions.

5. In these circumstances, it is not necessary to give any consideration to the balance of convenience nor as to whether it would be appropriate in a matter such as this to require any undertaking as to damages as a pre-condition to the grant of interim relief.

6. On the basis that urgency is not demonstrated, the application for interim relief must fail, and an order will issue to that effect.  The applicants will further be ordered to serve a copy of the written decision upon the respondent.

7. In the event that circumstances change and there is evidence to support the need for urgent relief, there is nothing to prevent the applicants lodging a further application for an appropriate order.

   I certify that this and the preceding eight pages comprise the reasons for decision of the Tribunal.

   ______________________

   C Raymond
   Senior Member