Bamford and Fong & Anor
[2021] WASAT 1
•5 JANUARY 2021
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 delineated on the survey-strata plan as 'CP4' (CP4) is attached to these reasons.
The respondents in these proceedings are Mr Joshua Zhenwi Fong (Mr Fong) who is the owner of Lot 2, Mr Meng Keet Siak (Mr Siak) who is the owner of Lot 1 and The Owners of 167 Swan Street, Yokine (SurveyStrata Plan 56343) (strata company).
In his application to the Tribunal of 13 May 2020, Mr Bamford sought the following orders:
1.An order is made to confirm that the Exclusive Use of Area for Common Property 4 [CP4] includes the right for Lot 3 owner to install fixtures in accordance with the by-law amendments.
2.That the request to install a new gate to replace the existing gate that is not built to an appropriate level of quality by Lot 3 owner in the Common Property 4 area [CP4] can continue.
3.That future requests for the installation or maintenance of fixtures in Common Property 4 [CP4] by the owner of Lot 3 can occur subject to appropriate notification to the other Lot owners, compliance with the strata plan and Strata [Titles] Act (sic) and any relevant council regulations.
4.The decision of the Tribunal (sic) is made so that the outcome is publicly listed on the [T]ribunal website so that future owners of the Lots involved in survey-strata (sic) Plan 56343 are aware of this decision and can prevent further disputes from occurring.
Mr Fong and Mr Siak oppose orders 1, 2 and 3 sought by Mr Bamford. They agree with order 4 sought by Mr Bamford, that is for the publication of the Tribunal's decision on the Tribunal's website.
The strata company did not participate in these proceedings.[1]
[1] Order 2 of the orders made by the Tribunal on 7 July 2020.
Mr Bamford's application falls within the Tribunal's original jurisdiction (s 15 of the State Administrative Tribunal Act 2004 (WA) (SAT Act)).
For the reasons set out below, Mr Bamford's application in respect of orders 1, 2 and 3 as set out in [5] above, is unsuccessful.
Relevant procedural history and evidence
The matter was heard on 19 August 2020.
Mr Bamford attended the hearing in person and gave oral evidence. Mr Fong and Mr Siak also attended the hearing in person and gave their respective oral evidence. As already noted, the strata company did not participate in these proceedings.[2]
[2] Order 2 of the orders made by the Tribunal on 7 July 2020.
No witnesses were called by the parties.[3]
[3] Order 4 of the orders made by the Tribunal on 7 July 2020.
In accordance with the Tribunal's usual practice in matters of this nature, the hearing was conducted on the basis that all of the documents filed with the Tribunal would be regarded as being in evidence, subject to any proper objection. No objection was made. The Tribunal therefore accepted the following documents into evidence:[4]
Exhibit 1:Mr Bamford's application dated 13 May 2020 along with a copy of the survey-strata plan, the Certificate of Title for each of Lot 1, 2 and 3 and notification of a change of by-laws (bylaw 17 Exclusive Use of Common Property Lot 4 (bylaw 17) and by-law 18 Exemptions for Lot1 and Lot 2 (by-law 18)) by Instrument number K884554 registered on 19 March 2009 (exclusive use bylaws).
Exhibit 2:Messrs Fong's and Siak's combined response to Mr Bamford's application together with supporting photographs and materials.
[4] Although forming part of 'evidence' each of the parties' contentions and submissions in Exhibit 1 and Exhibit 2 are taken to be submissions, rather than evidence.
The application proceeded in the Tribunal on the basis that the standard scheme by-laws apply, that is, the provisions set out in Sch 1 Governance bylaws and Sch 2 Conduct by-laws of the ST Act apply to the surveystrata scheme (cl 12 of Sch 3 of the ST Act).
During the hearing on 19 August 2020, Mr Fong referred to a document titled 'Settlement Deed' dated 22 October 2012 (settlement deed). MrFong explained that the settlement deed concerned the resolution of a dispute about the installation of 'Gates' on CP4 in an earlier proceeding before the Tribunal in matter CC 1595 of 2012.[5]
[5] The parties in matter CC 1595 of 2012 were Mr Thomas To and Mr Joshua Fong (applicants) and Ms Penny Chong (respondent).
Mr Fong said he provided a copy of the settlement deed to the other parties in these proceedings on 3 February 2020.
The settlement deed was not before the Tribunal. The Tribunal adjourned the matter in order to allow the parties to file with the Tribunal and provide a copy to the other parties by 18 December 2020, any written submissions they wished to make regarding the settlement deed.
Only Mr Fong filed written submissions with the Tribunal.[6]
[6] Mr Fong filed his written submissions on 19 November 2020.
On 21 December 2020, the Tribunal reserved its decision.
Next, the Tribunal sets out the agreed facts.
Agreed facts
Apart from whether a 'fixture', and in particular whether a gate, may be installed on CP4, the following facts were agreed by the parties. Thefacts are uncontroversial and the Tribunal makes these findings offact:
•The strata complex is comprised of three lots.
•The exclusive use by-laws were registered with Landgate (by Instrument number K884554) in March 2009 shortly after the survey-strata plan was registered.
•CP4 has always been a driveway for the sole purpose of the owner of Lot 3 to access and egress from Lot 3.
•A gate was installed on CP4 securing the entry to Lot 3 by the previous owner of Lot 3 sometime in 2011/12 (existing gate).
•On 22 October 2012, Mr Kuan Peng Chuah (Mrs Chong), Mr Thomas Pui Chung and Ms Yiying Wei (Mr and Mrs To) and Mr Fong entered into the settlement deed whereby they agreed to settle their dispute regarding the installation by Mrs Chong of 'Gates' (the existing gate) on CP4.
•Mr Bamford purchased Lot 3 in 2015 with the existing gate on CP4.
•On 3 February 2020, Mr Fong emailed a copy of the settlement deed to Mr Bamford and Mr Siak.
Issue to be determined
The issue to be determined by the Tribunal is whether by-law 17 and bylaw 18, properly interpreted (the exclusive use by-laws), permit the owner of Lot 3, currently Mr Bamford, to:
(a)keep the existing gate on CP4;
(b)remove the existing gate on CP4 and replace it with an electric gate (new gate); and
(c)install and maintain a 'fixture' on CP4 with notification to the other lot owners in compliance with the ST Act, scheme by-laws and other relevant law.
In the next section, the Tribunal sets out the legal framework and the principles applicable for the proper interpretation of scheme by-laws.
Legal framework
ST Act
Common property is property that is jointly owned by all owners in the strata title scheme as tenants in common and is not contained within any lot. In a survey-strata scheme, each area of common property is shown on the scheme plan and has its own unique number. The term common property is relevantly defined in s 10 of the ST Act as:
(1)The common property in a strata titles scheme is
(a)that part of the parcel of land subdivided by the strata titles scheme that does not form part of a lot in the strata titles scheme[.]
(2)The common property includes, for a strata scheme, those parts of a scheme building that do not form part of a lot.
In this case, the common property is delineated on the survey-strata plan as 'CP4' (as shown in the survey-strata plan attached to thesereasons).
Clause 14 of Sch 5 of the ST Act provides that a scheme dispute may involve an event that occurred, or a matter that arose, before commencement day (1 May 2020) and in determining the dispute, the Tribunal may apply the objectives set out in s 119 of the ST Act as if that section had been in force when the event occurred or the matter arose.
Section 119(1) of the ST Act provides that the strata company in performing its functions is to have the objective of implementing processes and achieving outcomes that are not, having regards to the use and enjoyment of lots and common property in the strata titles scheme:
(a)unfairly prejudicial to or discriminatory against a person; or
(b)oppressive or unreasonable.
Section 197 of the ST Act provides for resolution of certain scheme disputes including:
(a)a dispute between scheme participants about
…
(ii)the performance of, or the failure to perform, a function conferred or imposed on a person by this [ST] Act or the scheme bylaws; or
…
(vi)any other matter arising under this [ST] Act or the scheme bylaws[.]
The term 'scheme participants' in s 197 is defined in s 197(2) of the STAct and includes the strata company and the occupier of a lot in the strata title scheme.
Section 197(4) provides that an application may be made by a party to the Tribunal for the resolution of a scheme dispute. In this case, MrBamford, as an owner and occupier of Lot 3 has made an application to the Tribunal for the resolution of the dispute to do with the removal of the existing gate and the installation of the new gate on CP4.
In proceedings under the ST Act, the Tribunal may make any order it considers appropriate to resolve the dispute or proceeding. The types of orders that the Tribunal may make are set out in s 200 of the ST Act and includes, for example, an order under s 200(2)(m) of the ST Act requiring a person to take specified action or to refrain from taking specified action to remedy a contravention or prevent further contraventions of the STAct or scheme by-laws.
Scheme by-laws
Scheme by-laws are the rules the strata company, owners and occupiers need to abide by. This is provided for in s 45 of the ST Act.
Under s 44 of the ST Act, the strata company has broad powers to make, amend and repeal scheme by-laws. Scheme by-laws cannot be inconsistent with the ST Act and other relevant law.
The scheme by-laws that apply in this case are a combination of bylaws registered for the surveystrata scheme and the by-laws set out in Sch 1 and Sch 2 of the ST Act. Clause 4 of Sch 5 of the ST Act relevantlyprovides:
(1)The bylaws (including any management statement) of a strata company as in force immediately before commencement day continue in force, subject to this Act, as scheme bylaws and as if they had been made as governance bylaws or as conduct bylaws according to the classification into which they would fall if they had been made on commencement day.
…
(3)A bylaw under section 42(8) as in force immediately before commencement day is taken to be an exclusive use bylaw subject to this Act[.]
It is possible to create by-laws granting an owner exclusive use and enjoyment of, or special privileges in respect of, common property or any part of it. This was explained by the Tribunal[7] in The Owners of Del Mar Strata Plan 53989 and Dart Enterprises Pty Ltd [2020] WASAT 9 (Del Mar) at [35].
[7] Ms R Petrucci, M.
Section 43 of the ST Act deals with such exclusive use by-laws and relevantly provides:
(1)Exclusive use bylaws of a strata titles scheme are scheme bylaws that confer exclusive use and enjoyment of, or special privileges over, the common property in the strata titles scheme or specified common property in the strata titles scheme (the special common property) on the occupiers, for the time being, of a specified lot or lots in the strata titles scheme (the special lots).
(2)Exclusive use bylaws may include the following
(a)terms and conditions on which the occupiers of special lots may use the special common property;
(b)particulars relating to access to the special common property and the provision and keeping of any key necessary;
(c)particulars of the hours during which the special common property may be used;
(d)provisions relating to the condition, maintenance, repair, renewal or replacement of the special common property;
(e)provisions relating to insurance of the special common property to be maintained by the owners of special lots;
(f)matters relating to the determination of amounts payable to the strata company by the owners of special lots and the imposition and collection of the amounts.
(3)Subject to the terms of exclusive use bylaws, the obligations that would, apart from this subsection, fall on the strata company under section 91(1)(c) in relation to the special common property fall instead on the owners of the special lots.
…
(5)Exclusive use bylaws can only be made, amended or repealed if the owner of each lot that is or is proposed to be a special lot has given written consent to the bylaws.
In this case, exclusive use by-laws, being by-law 17 and by-law 18, were duly passed at a meeting of the strata company on 28 January 2009 and registered with Landgate on 19 March 2009 (by instrument K884554). Bylaw 17 and by-law 18 have not been repealed or amended. They provide as follows:
17.EXCLUSIVE USE OF COMMON PROPERTY LOT 4
The proprietor of lot 3 is hereby granted exclusive use of common property lot 4 ('Exclusive Use Area') that is delineated on SurveyStrata Plan 56343 as CP 4 and shall
(a)at all times and at his, her or its costs, maintain and keep the Exclusive Use Area in a clean, neat and tidy condition;
(b)use the Exclusive Use Area for the purpose of vehicle and pedestrian access and egress[;]
(c)not park motor vehicles within the Exclusive Use Area;
(d)if the lots within the strata scheme are individually insured, indemnify the strata company against all claims for damages, loss, injury or death arising from the use of the Exclusive Use Area by having the appropriate public liability insurance in place.
18.EXEMPTIONS FOR LOTS 1 AND 2
In accordance with section 42B of the [ST] Act [as it was prior to 1 May 2020], the proprietors of lots 1 and 2 are exempt from contributing to any costs associated with the insurance, installation, maintenance, or repair of any paving, landscaping, or fixtures that are located, or may be located on CP4.
Principles applicable to the proper interpretation of scheme by-laws
Before setting out the contentions of the parties, it is useful to set out the principles applicable to the proper interpretation of scheme bylaws as enunciated by the Supreme Court of Western Australia[8] in Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 (First decision)[9] and subsequently by the Court of Appeal[10] in Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 (Appeal decision).[11] The principles were summarised by the Tribunal in Del Mar at [46][48] as follows:
[8] Pritchard J.
[9] [2016] WASC 153.
[10] Murphy and Mitchell JJA and Beech J.
[11] [2017] WASCA 104.
46Having considered The Owners of Strata Plan No 3397 v Tate [2007] NSWCA 207; (2007) 70 NSWLR 344 (Tate), her Honour Justice Pritchard in the First decision concluded at [71] that bylaws should be characterised as a statutory contract. Her Honour summarised the principles applicable to the construction of bylaws at [75] to [79] as follows (citations omitted):
75.The ordinary principles of contractual construction should guide the construction of the ByLaws. They are that the rights and liabilities of parties under a term of a contract are determined objectively, by reference to the contract's text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose. However, in the case of the ByLaws, those principles are subject to four qualifications:
76.First, to the extent that their terms permit, the By-Laws should be construed so that they are not inconsistent with the ST Act (bearing in mind that a strata company has no power to make a by-law which is inconsistent with the ST Act).
77.Secondly, in interpreting a term of a contract which is ambiguous, it is possible in some circumstances to refer to objective extrinsic material to ascertain the meaning of the term. However, in the context of the ByLaws, caution should be exercised in going beyond the language of the By-Laws and their statutory context to ascertain their meaning, and a tight rein should be kept on having recourse to surrounding circumstances. (That reflects the fact that although (as I noted at [59] above) the bylaws of a strata company may be inspected by third persons, such persons would ordinarily have no access to the circumstances surrounding the making of those by-laws.)
78.Thirdly, the statutory context of the bylaws of a strata company should be taken into account by the Court in construing the ByLaws. That statutory context includes the fact that the function of the ByLaws is to regulate the rights and liabilities of the Respondent, the proprietors of the lots in the Complex and certain other parties with rights or interests in the lots and the common property in the Complex.
79.Fourthly, in ascertaining the meaning of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood its terms to mean. That will involve a consideration of the language used, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract. Unless a contrary intention is indicated, the court will approach the task on the assumption that the parties intended to produce a commercial result, so that the contract should be construed so as to avoid it making commercial nonsense or working a commercial inconvenience. However, in the case of the ByLaws, there is no basis for saying that they should be interpreted as a business document, with the intention that they be given business efficacy. That does not mean that the ByLaws may not have a commercial purpose, and be interpreted accordingly, but due regard must be paid to the statutory context in so doing.
47In the Appeal decision, their Honours Murphy, Mitchell and Beech JJA observed at [139] that the parties in the appeal proceeding approached the proper construction of bylaw 16 on the basis that the by-laws were a statutory contract to which, in general terms, the principles referred to in Tate applied. However, having stated that they considered and disposed of the appeal on that basis, their Honours went on to say at [139] that, in point of principle, it might be thought that the appeal before them concerned the proper construction of the management statement, lodged and registered with the Ceresa River strata plan and which had been amended since registration, and therefore the correct approach to construction of the management statement might be along the following lines:
(a)is to be construed objectively, by reference to what a reasonable person would understand the language of the instrument to mean;
(b)it is to be construed in the context of the registered strata plan;
(c)it is to be construed in the relevant statutory context, being, first and foremost, the Strata Titles Act;
(d)as the Management Statement is on the Torrens Register, unamended, rules of evidence assisting the construction of contracts inter parties, of a nature explained by Codelfa Constructions Pty Ltd v State Rail Authority (NSW) do not apply to its construction: Westfield Management Ltd v Perpetual Trustee Co Ltd; and
(e)insofar as there are constructional choices properly open, a construction should be preferred which is consistent with the Strata Titles Act: s 42(1) of the Strata TitlesAct.
48Their Honours concluded at [140] that if the above approach to construction is the correct approach, the result of the appeal would have been the same. The approaches to construction of a management statement or of by-laws as set out in the First decision and the Appeal decision although different in part, are not inconsistent.
As the Tribunal stated in Del Mar at [48], the approaches to construction of a management statement or of scheme by-laws as set out in the First decision and the Appeal decision although different in part, are not inconsistent. The Tribunal will apply these principles in interpreting the meaning of by-law 17 and by-law 18.
Settlement deed
On 22 October 2012 Mrs Chong, Mr and Mrs To and Mr Fong entered into the settlement deed whereby they agreed to settle their dispute about the installation by Mrs Chong of 'Gates' (the existing gate) in the defined gate location which is on CP4.
The terms of the agreement in relation to the installation of 'Gates' (the existing gate) is set out in clause 2 of the settlement deed as follows:
2.1Each of the parties agree that the proprietor of Lot 3 is hereby authorised to install the Gates at the Gate Location in accordance with the City's Approvals and on the following conditions:
2.1.1the installation of the Gates must be carried out by Millstone Homes or any other registered builder and must be carried out at the sole cost and expense of the proprietor of Lot 3;
2.1.2the installation of the Gates at the Gate Location must not damage any building on Lot 1 or Lot 2;
2.1.3a CCTV camera which is to be focused towards CP4 only (and not capable of rotating to view Lot 1 and Lot 2) be attached on both columns housing the Gates;
2.1.4an intercom be attached to one of the columns of the Gates;
2.1.5the proprietor of Lot 3 must at that proprietor's sole cost and expense maintain the Gates, the CCTV camera and the intercom referred to the above and keep them in good state of repair.
2.2Each of the parties agree that the agreement set out in clause 2.1 is deemed to be a resolution without dissent for the purposes of the Strata Titles Act and each agrees to use its reasonable endeavours to register that resolution at Landgate or in any other way required by the Strata Titles Act.
The terms set out in clause 2.1 of the settlement deed, agreed by the parties to be a resolution without dissent for the purposes of the ST Act, have not been registered with Landgate.
The Tribunal turns, next, to set out in summary the main contentions of the parties.
Contentions of the parties
Mr Bamford's main contentions may be summarised as follows:
•The existing gate was already affixed on CP4 when he purchased Lot 3 in 2015.
•The new gate is superior to the existing gate. Even though it will be several metres closer towards Swan Street, the new gate is important for the security of Lot 3 and to ensure his children have a safe place to play.
•The installation of the new gate does not change access to CP4 or impede on the rights of the other lot owners.
•By-law 18 causes a significant financial burden to the owner of Lot 3.
Messrs Fong's and Siak's main contentions may be summarised as follows:
•The existing gate on CP4 was not authorised on registration of the survey-strata plan in 2009 or by the exclusive use by-laws.
•CP4 is common property. Mr Bamford, as the owner of Lot 3, cannot use CP4 as his private property.
•By-law 17 only allows for vehicle and pedestrian access to and egress from Lot 3.
•By-law 17 and by-law 18 are clear.
Mr Fong's written submissions regarding the settlement deed may be summarised as follows:[12]
•The settlement deed is a private agreement between the previous three lot owners and does not apply to the parties in these proceedings or to future lot owners.
•The terms of the settlement deed were not intended to replace or amend the scheme by-laws and therefore clause 2.1 of the settlement deed was not registered with Landgate.
•The previous lot owners agreed for Mrs Chong as the (then) owner of Lot 3 to install 'Gates' (the existing gate) on CP4 at her sole cost. Mrs Chong agreed to keep the existing gate in a good state of repair at her cost and to pay for any damage done to Lot 1 and Lot 2.
•He was told by Mrs Chong that she had sold Lot 3 to Mr Bamford and had informed Mr Bamford of the settlement deed.
•As time went by he wondered why the existing gate had not been removed by Mr Bamford (the current owner of Lot 3), but did not ask as he did not want to be an intrusive neighbour.
•On 3 February 2020 he noticed holes being dug on CP4 adjacent to the foundations of Lot 1 and Lot 2. He referred Mr Bamford and Mr Siak to the settlement deed and explained that any changes to CP4 would require notice to and approval from all the current lot owners.
[12] Written submissions filed with the Tribunal on 19 November 2020.
Having set out the main contentions of the parties, the Tribunal turns, next, to address the issue set out at [22] above.
Consideration by the Tribunal
Issue Whether bylaw 17 and by-law 18, properly interpreted, permit Mr Bamford to: (a) keep the existing gate on CP4; (b) to remove the existing gate and replace it with the new gate; and (c) to install and maintain a fixture on CP4
Existing gate on CP4
It is Mr Bamford's evidence that he purchased Lot 3 with the existing gate on CP4 in 2015. On that basis, along with a copy of the letter from the City of Stirling, dated 18 November 2011, notifying that planning approval for the existing gate had been approved, Mr Bamford explained that in early 2020 he decided to install the new gate because the existing gate is faulty (it has short circuited) and opens the wrong way. Mr Bamford said he was unaware of any dispute between the previous lot owners in regard to the existing gate.
Mr Fong explained that he purchased his lot prior to Mr Bamford and Mr Siak purchasing their respective lots. Mr Fong said that a dispute arose concerning the existing gate and an application was lodged with the Tribunal in 2012.[13] According to Mr Fong, that application was withdrawn because the then owners agreed on or about 22 October 2012 (settlement deed) for the existing gate to be removed upon sale of Lot 3 and that the then owner of Lot 3 (Mrs Chong) would inform the buyer of Lot 3 (Mr Bamford) about the settlement deed. Mr Fong submitted that only the then owners are subject to the settlement deed and that nothing was registered with Landgate.
[13] CC 1595 of 2012 dated 22 October 2012.
Messrs Fong and Siak submitted that the survey-strata plan does not show or authorise the existing gate on CP4. Further, it is the submission of Messrs Fong and Siak that the existing gate does not comply with the scheme by-laws, in particular by-law 17. This is because, according to Messrs Fong and Siak, by-law 17 provides for use of CP4 to access and egress from Lot 3 but it does not allow the owner of Lot 3 to alter, damage or build on CP4.
Messrs Fong and Siak submitted that with the existing gate on CP4, Mr Bamford has utilised part of CP4 for his private use, for example, as a play area for his children. Messrs Fong and Siak submitted that this is contrary to by-law 17 as there is nothing in that by-law which provides for such use.
The starting point is to consider by-law 17 and by-law 18.
By-law 17 and by-law 18 were enacted under s 42(8) of the ST Act (as it was prior to 1 May 2020), which enables the strata company to set aside common property or any part of it upon such terms and conditions for the exclusive use of a lot owner. These by-laws were registered with Landgate on 19 March 2009 (by instrument K884554), shortly after the survey-strata plan was registered.
In the Tribunal's view, a reasonable person would understand the language of by-law 17 to mean that the owner of Lot 3 has the exclusive use of CP4 for the purpose of vehicle and pedestrian access to and egress from Lot 3. This is because the survey-strata plan depicts CP4 as essentially a 'driveway' to Lot 3. In the Tribunal's view without by-law 17, the owner of Lot 3 would not be able to freely access or egress from Lot 3.
Further, by-law 17(c) expressly provides that no motor vehicles may be parked on CP4. This is, in the Tribunal's view, necessary to ensure that vehicles and pedestrians are able to easily access and egress from Lot 3 at all times. In other words, by-law 17 is providing for the 'driveway' needed to access and egress from Lot 3. However, the exclusive use of CP4 to access and to egress from Lot 3, does not, in the view of the Tribunal, give the owner of Lot 3 any right or authority to locate or otherwise affix the existing gate on CP4.
The Tribunal accepts the contention of Messrs Fong and Siak that the placing of the existing gate on CP4 has the practical effect of annexing a substantial part of CP4 into Mr Bamford's lot.
In conclusion, in the Tribunal's view, the proper interpretation of bylaw 17 in the context of the survey-strata plan, the ST Act and scheme bylaws, only allows CP4 to be used for vehicle and pedestrian access to and egress from Lot 3.
Installation of new gate to replace the existing gate
Mr Bamford submitted that the new gate will be of a high quality. Mr Bamford submitted that it is not his intention to get extra space by affixing the new gate on CP4 closer to Swan Street. At the hearing, Mr Bamford stated that he would be happy to have the new gate installed where the existing gate is currently located on CP4 if that was preferred by the other lot owners.
Messrs Fong and Siak submitted that Mr Bamford, by his actions where he is seeking to locate or install the new gate on CP4, is using the common property as if he is the owner of CP4. Messrs Fong and Siak submitted that bylaw 17(b) only grants to the owner of Lot 3, currently Mr Bamford, the exclusive use of CP4 for the purpose of enabling vehicles and pedestrians to access and to egress from Lot 3. It is the submission of Messrs Fong and Siak that by-law 17 does not convey any right to Mr Bamford to install or otherwise locate the new gate to replace the existing gate, on CP4.
For the same reasons as set out above at [54] to [55] in respect of the existing gate, the Tribunal concludes that the proper interpretation of bylaw 17 in the context of survey-strata plan, the ST Act and scheme bylaws, only allows CP4 to be used for vehicle and pedestrian access to and egress from Lot 3.
Access to CP4 remains unchanged
Mr Bamford submitted that the installation of the new gate on CP4 will not change the current access to CP4 for the other lot owners. Mr Bamford explained that he proposed to have the new gate installed in an alternate location (closer to Swan Street) in order for the existing gate to be maintained until the new gate is installed. Mr Bamford said that both the existing gate and the new gate would be both on CP4 at the same time but only for a short period of time to ensure that Lot 3 remains secure. Mr Bamford submitted that in the past four years he has not received any request to open the existing gate in order to access the rear of Lot 1 or Lot 2.
Messrs Fong and Siak submitted that by-law 17(b) only allows CP4 to be used to access and egress from Lot 3 by vehicles and pedestrians and that by-law 17(c) prohibits the parking of motor vehicles on CP4. Messrs Fong and Siak submitted that the existing gate on CP4 physically hinders access to Lot 3 by, for example, a postman or police officer who is seeking to access Lot 3 because the existing gate is locked. Further, Messrs Fong and Siak submitted that whilst they acknowledge the need for children to play in a safe area, by-law 17 does not provide for installation of a gate on CP4 to ensure children have a safe place to play. Finally, Messrs Fong and Siak submitted that by-law 17 was not intended to prevent them as the owners of Lot 1 and Lot 2 from accessing the rear of their respective lots closest to CP4.
As already stated above at [54] to [55], in the Tribunal's view, bylaw 17 is clear. In particular, by-law 17(b) provides that CP4 is to be used for the 'purpose of vehicle and pedestrian access and egress'. Further, bylaw 17(c) prohibits the parking of motor vehicles on CP4. In the Tribunal's view, this means that having a gate across the width of CP4 prevents vehicle and pedestrian access to and egress from Lot 3.
Financial burden
Mr Bamford submitted that by-law 18 causes him a significant financial burden as he is required to pay all of the costs to repair and maintain CP4, an area of 112m².
Messrs Fong and Siak submitted that it is reasonable to require the owner of Lot 3, currently Mr Bamford, to pay for the maintenance and upkeep of CP4 as the owner of Lot 3 has the exclusive use of CP4 to access and to egress from Lot 3. Messrs Fong and Siak submitted that in any event there has not been a significant financial burden to Mr Bamford because during the past five years there has been minimal maintenance required on CP4 as it comprises concrete and artificial lawn on the sides.
In the Tribunal's view, the wording of by-law 18 is clear. By-law 18 exempts the owners of Lot 1 and Lot 2 from contributing to the costs in respect of CP4 in return for the owner of Lot 3, currently Mr Bamford, for having the exclusive use of CP4 in order to access and egress from Lot 3. More particularly, the costs that the owners of Lot 1 and Lot 2 are exempt from contributing to are the insurance, installation, maintenance or repair of any paving, landscaping or fixtures that are located, or may be located on CP4. In other words, in the view of the Tribunal, the owner of Lot 3, currently Mr Bamford, is responsible for the costs of CP4 which are the insurance, installation, maintenance or repair of paving, landscaping and fixtures located on CP4.
Fixture
By-law 18 makes reference to 'fixtures that are located, or may be located on CP4'.
The term 'fixtures' is not defined in the ST Act or in the scheme bylaws. This means that in interpreting the by-laws, the ordinary meaning of the term 'fixtures' is to be used. Ordinarily, 'fixture' means something securely fixed in position or a permanently attached part or appendage of a house, for example an electric light fixture.[14]
[14] Macquarie Dictionary Online.
In the Tribunal's view, a 'fixture' may be located on common property, in this case CP4, provided that the 'fixture' does not interfere with the access to and egress from Lot 3 and that the necessary resolution of the strata company has been passed as required by s 43 of the ST Act. Under the ST Act each lot owner has an undivided share in the common property (in this case CP4) and that the owners must consent to alterations to such common property before they may occur. This is an underlying principle of the management and control of common property under the ST Act. The owners must therefore collectively consent to fixtures to be located on CP4 before they may occur. This is in recognition that the strata company is responsible for the maintenance and control of common property on behalf of all the owners (s 91 of the ST Act).
There is also an underlying assumption in the ST Act that owners seek approval for a 'fixture' to be located on CP4, being common property prior to doing any works. The owner who fails to seek approval from all fellow owners by having a 'fixture' located on CP4 may be required to remove the 'fixture' and restore the common property, in this case the CP4. This occurred for example in Wong v Reid[15]where the Supreme Court[16] dismissed Mr Wong's application seeking leave to appeal against the decision of the Tribunal[17] requiring Mr Wong to remove a wall he constructed on common property in a strata scheme without consent of the other owners in the strata scheme and to arrange for the reconstitution of a garden on the common property.
[15] [2016] WASC 59.
[16] Beech J.
[17] Mr T Carey M.
The same standard applies to a new owner who acquires a lot where the previous owner has made alterations to common property. It is the responsibility of the new owner to ensure through due diligence that any 'fixture' located on CP4 by the previous owner was done with the necessary approval of the strata company and registration of the resolution (an exclusive use by-law) with Landgate. A 'fixture' located on CP4 by a previous owner does not obviate the current owner of accountability or liability to remove the 'fixture' and rectify any damage that may have been caused to the common property.
If the necessary resolution (exclusive use by-law) is passed by the strata company as required by the ST Act in respect of a 'fixture', then, in the Tribunal's view, the proper interpretation of by-law 18 is that the owner of Lot 3 is solely responsible for the costs associated with the insurance, installation, maintenance or repair of that 'fixture' located on CP4.
In this case, the evidence before the Tribunal is that no resolution which meets the requirements of s 43 of the ST Act (exclusive use bylaw) concerning the location or installation of a 'fixture' on CP4 has been registered with Landgate.
Settlement deed
The Tribunal finds that Mr Fong's interpretation of the settlement deed is somewhat different to the wording of clause 2.2 of the settlement deed. It is Mr Fong's evidence that it was not intended to replace or amend the scheme by-laws and therefore clause 2.1 (as a resolution under s 43 of the ST Act) was not registered with Landgate.
In the Tribunal's view the then owners agreed that the terms of their agreement as set out in clause 2.1 of the settlement deed was deemed to be a resolution without dissent (which is required by s 43 of the ST Act) for the existing gate to be installed on CP4 by the then owner of Lot 3 (Mrs Chong) and that the then owners (Mrs Chong, Mr and Mrs To and Mr Fong) agreed that they would use their reasonable endeavours to register the resolution with Landgate.
It is the evidence of Messrs Fong and Siak that the settlement deed only applies to the then owners and therefore does not apply to the parties in these proceedings, or to future owners.
Mr Bamford did not make any submissions regarding the settlement deed.
The other previous owners, Mrs Chong, Mr To and Mrs To were not called to give evidence in these proceedings.
There is no evidence before the Tribunal that the rights and obligations of the then owner of Lot 3 (Mrs Chong) under the settlement deed were assigned or otherwise transferred to the current owner of Lot 3 (Mr Bamford). Consequently, the only finding that the Tribunal can make is that the resolution, to reflect clause 2.1 of the settlement deed has not been registered with Landgate and that there have not been any amendments to by-law 17 and by-law 18.
Discretion
Finally, Mr Bamford urged the Tribunal, having regard to the history of the strata complex, and in particular that the existing gate has been in place since 2011/12, to apply discretion to allow him as the owner of Lot 3 to keep the existing gate or to have the new gate installed on CP4.
In the Tribunal's view, the proper interpretation of by-law 17 and by-law 18, in the context of the survey-strata plan, the ST Act and the scheme by-laws, is that the owner of Lot 3 has been given the exclusive use of CP4 for the purpose of vehicle and pedestrian access to and egress from Lot 3. In having this exclusive use of CP4, the owner of Lot 3 must keep CP4 in a clean, neat and tidy condition and that no motor vehicles can be parked on it. Finally, the owners of Lot 1 and Lot 2 are exempted from contributing to the costs of CP4.
Conclusion
In conclusion, by-law 17 properly interpreted has the following construction:
•the owner of Lot 3 is granted an exclusive use of CP4 for the purpose of vehicle and pedestrian access to and egress from Lot 3;
•the owner of Lot 3, at his cost, is required to maintain and keep CP4 in a clean, neat and tidy condition;
•no motor vehicles may be parked on CP4; and
•the owner of Lot 3 shall indemnify the strata company against various claims if the lots within the strata scheme are individually insured.
By-law 18 properly interpreted has the following construction:
•the owners of Lot 1 and Lot 2 are exempted from contributing to the costs of CP4.
In the Tribunal's view, this means that by-law 17 and by-law 18, properly interpreted, do not permit the owner of Lot 3, currently Mr Bamford, to:
(a)keep the existing gate on CP4; or
(b)remove the existing gate on CP4 and replace it with the new gate.
In relation to the installing or locating a 'fixture' on CP4, prior approval of all the owners is required. In addition the required resolution needs to be registered with Landgate. These requirements were explained above at [67][70]. If these requirements are satisfied, then the owner of Lot 3 is solely responsible for the costs associated with the insurance, installation, maintenance or repair of that 'fixture' located on CP4 as explained above at [72].
For the reasons set out above, Mr Bamford's application is unsuccessful. The Tribunal will therefore dismiss Mr Bamford's application and issue the following order.
Orders
The Tribunal orders:
1.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
5 JANUARY 2021
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