Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (in liquidation) v Kelly

The appeal was brought by Birchwood Consolidated Pty Ltd (Receivers and Managers appointed) (In liquidation) against the decision of the State Administrative Tribunal which had found that by-laws which provided for the conversion of one of its lots into common property, and the transfer of that common property out of the strata scheme, were invalid. The by-laws were included in a management statement which was lodged with the strata plan for registration. The Tribunal found that the by-laws were not within the scope of the by-law making power in s 42 of the Strata Titles Act 1985 (WA), and were inconsistent with the process for the conversion of lots to common property and the transfer of common property out of the scheme. Birchwood argued that the Registrar was under a duty to determine whether the management statement complied with the Act and the regulations, and that the registration of the management statement gave rise to a presumption of regularity. The court held that neither argument was correct. The court held that the by-laws were within the scope of the by-law making power in s 42 and were not inconsistent with other provisions of the Act. The court also held that the Tribunal was empowered to give effect to the transaction under s 83 of the Act. The appeal was allowed.