Bamford and Fong & Anor - [2021] WASAT 1

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   BAMFORD and FONG & ANOR [2021] WASAT 1
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   19 AUGUST 2020
FURTHER SUBMISSIONS FILED ON 19 NOVEMBER 2020

DELIVERED          :   5 JANUARY 2021
FILE NO/S:   CC 554 of 2020
BETWEEN:   MATHEW DAVID BAMFORD
Applicant
AND
JOSHUA ZHENWI FONG
First Respondent
MENG KEET SIAK
Second Respondent
THE OWNERS OF 167 SWAN STREET YOKINE (SURVEY-STRATA PLAN 56343)
Third Respondent

Catchwords:

Strata Titles Act 1985 (WA) from 1 May 2020 - Three lot surveystrata scheme - Scheme dispute - Exclusive use of common property bylaw - Proper construction of scheme bylaw - Settlement deed - Discretion of the Tribunal to make orders to resolve scheme dispute - Turns on own facts

Legislation:

State Administrative Tribunal Act 2004 (WA), s 15
Strata Titles Act 1985 (WA) (since 1 May 2020), s 10, s 42(8), s 43, s 44, s 45, s 91, s 119, s 119(1), s 197, s 197(2), s 197(4), s 200, s 200(2)(m), Sch 1, Sch 2, Sch 3, cl 12, Sch 5, cl 4, cl 14, cl 30(1)
Strata Titles Amendment Act 2018 (WA)

Result:

Application unsuccessful
Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	In Person
Second Respondent	:	In Person
Third Respondent	:	N/A

Solicitors:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A
Third Respondent	:	N/A

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

Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2017] WASCA 104
The Owners of Del Mar Strata Plan 53989 and Dart Enterprises Pty Ltd [2020] WASAT 9
Wong v Reid [2016] WASC 59

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Mr Mathew David Bamford (Mr Bamford) has brought proceedings in the Tribunal under s 197(4) of the Strata Titles Act 1985 (WA) (ST Act).
These proceedings commenced after the major amendments to the ST Act coming into operation on 1 May 2020 under the Strata Titles Amendment Act 2018 (WA). This means the provisions of the ST Act, as they are following the amendments, apply to the determination of this application: cl 30(1) of Sch 5 of the ST Act. All references to the provisions of the ST Act in these reasons are to those in the ST Act as of 1 May 2020 unless stated otherwise.
Mr Bamford is an owner of Lot 3 together with a share in any common property (Lot 3) as set out on Survey-Strata Plan 56343 which was registered on 20 November 2008 (survey-strata plan). The relevant survey-strata scheme is located at No 167 Swan Street, Yokine and is described in the survey-strata plan as being 'Three survey-strata lots and one common property lot upon Lot 123 on Diagram 15323' (strata complex). A copy of the survey-strata plan showing the common property Lot 4…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] WASAT 1
Decision Date: 5 JANUARY 2021

CaseChat Overview and Summary

Bamford and Fong & Anor involved a dispute under the Strata Titles Act 1985 (WA) concerning the interpretation of a by-law governing the exclusive use of common property in a three-lot strata scheme. The dispute was brought before the tribunal to determine the proper construction of the by-law and its implications for the rights of the parties involved. The core issue was whether the settlement deed was correctly interpreted as granting exclusive use rights to the Bamfords, which the Fongs contested.

The legal issues the court had to address included the proper interpretation of the by-law and whether it was consistent with the settlement deed. The court also needed to determine the discretion of the tribunal in making orders to resolve the dispute, considering the unique facts of the case. The Bamfords argued that the settlement deed gave them exclusive use of certain common property, while the Fongs argued that the by-law did not support such an interpretation.

The court held that the settlement deed did not explicitly grant the Bamfords exclusive use of the common property as they contended. The by-law was properly interpreted to not support such exclusive rights. The tribunal had the discretion to make orders based on the unique facts of the case, and in this instance, it found that the Fongs were not bound by the Bamfords' claimed exclusive use rights. Consequently, the tribunal made orders to resolve the dispute, reflecting the proper construction of the by-law and settlement deed.

Orders