CAPUTI and PADO
[2005] WASAT 146
•29 JUNE 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: CAPUTI and PADO [2005] WASAT 146
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 29 JUNE 2005
FILE NO/S: STR 123 of 2004
BETWEEN: SUZANNE CAPUTI
Applicant
AND
CHRISTINE ANN PADO
Respondent
Catchwords:
Strata titles act - Alleged breach of bylaws relating to parking and garbage disposal - Compulsory conference - Respondent's failure to attend - Determination of proceedings
Legislation:
State Administrative Tribunal Act 2004 (WA), s 52, s 53, s 81(1)
State Administrative Tribunal Rules 2004 (WA), s 32
Strata Titles Act 1985 (WA), s 83, s 95
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: No appearance
Solicitors:
Applicant: Self-represented
Respondent: N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL
Issue for determination
The issue for determination is whether conduct has occurred in breach of the by‑laws in relation to use of the common property for parking a motor vehicle and in relation to rubbish disposal.
Strata plan and parcel
The applicant and respondent are respectively the owners of lots 6 and 7 on Strata Plan 38630.
The strata plan was registered on 12 September 2000. The parcel comprises seven single storey brick and tile residential units.
A notification of change of by‑laws was registered on 29 September 2000 by way of an instrument of notification No H563791 AE. The notification reflects the addition to the by‑laws in Sch 1 to the Strata Titles Act 1985 (WA) ("the Act") of additional by‑laws numbered 16 to 18. By the same notification, immediately after the amendments to Sch 1 referred to above, the following appears:
"SCHEDULE 2 BY‑LAWS
that by special resolution duly passed at a meeting of the strata company on the 27th day of September 2000 which became unconditional on the 27th day of September 2000, the by‑laws in Sch 1 (underlining added for emphasis) to the Act as they apply to the strata company, were repealed and added to as follows;‑
Repeal by‑laws 1, 3and 10, add the following by‑laws …"
Thereafter by‑laws numbered 15 and 16 are set out which deal respectively with parking on common property and vehicles.
By s 42 of the Act the Sch 1 and Sch 2 by‑laws are deemed to be the by‑laws of the strata company save to the extent that they may be amended, repealed or added to by the strata company.
The notification contains an obvious error in that the reference to Sch 1, under the Sch 2 by‑laws heading, must have been intended to be a reference to Sch 2. The by‑laws 1, 3 and 10 in Sch 2 deal with vehicles, damage to lawns on common property and floor coverings whereas the corresponding by‑laws in Sch 1 relate to the general duties of proprietors, occupiers, the power of the strata company regarding sub meters and the power and duties of the treasurer of the strata company. The added by‑laws 15 and 16 deal with parking on common property and vehicles which are to some extent the same subject matter as the topics covered by by‑laws 1, 3 and 10 of Sch 2.
In these circumstances I take the reference to Sch 1, within the quotations above, to be in error and that it was intended to refer to Sch 2 of the Act. As the error is obvious it can be dealt with as a matter of interpretation.
Order sought
The order sought by the applicant is as follows:
"That no proprietor, occupier or resident of lot 7 on strata plan 38630, nor any visitor of said lot 7, may at any time park, or stand any vehicle or other thing, or object, upon any part of the common property drive‑way that gives access to lots 6 and 7 on strata plan 38360."
Although no order was formulated by the applicant in relation to garbage disposal, under the grounds for the application, the applicant raised that the respondent placed her garbage bin under the applicant's bedroom window such that the stench constituted a health issue. The intent to seek an appropriate order to remedy the complaint can be inferred. In view of the Tribunal's obligations to act according to the substantial merits of the case with as little technicality as is practicable, I amend the application to include an order sought that the respondent remove her garbage bin from under the applicant's bedroom window.
By s 81(1) of the State Administrative Tribunal Act 2004 (WA), ("the SAT Act") may make an order sought by the applicant and an order may be expressed in terms different from the order sought, so long as it does not differ in substance from that sought. Further an order may include such ancillary or consequential provisions as the SAT may think fit.
In support of the application the applicant included copies of correspondence written to the respondent complaining about the blocking of the drive‑way and the grounds in support of the application set out the complaint about parking on common property and the placement of the rubbish bin.
In opposition to the application the respondent filed two documents both dated 9 December 2004 addressed to "Whom it May Concern".
In the one document the respondent stated that she opposes the application on the grounds that parking has never been an issue until the last year. She referred to a discussion with the applicant in which it is stated that the applicant advised that because she did not have a vehicle, the respondent was welcome to park in the alcove. The respondent states "I have never done this [which I assume means park in the alcove] as where I park does not block any access to her residence".
In the second document the respondent explains the need to park her motor vehicle where she does because her garage is taken up by the storage of a chair. In relation to the bin issue she states she has always placed the bin outside her gate and never had complaints in the past. Thereafter are a number of statements complaining about nuisance telephone calls which are not relevant to the application. The respondent concludes that she does not intend to park on the street.
The application was made to the Strata Titles Referee by application dated 29 October 2004. On 12 November 2004 the registrar of the Strata Titles Referee gave notice to the strata company, the owners of 113 Hillsborough Drive, Nollamara – Strata Plan 38630 of the application. No submissions were received on behalf of the strata company or any of the persons to whom the strata company was obliged to give notice in accordance with s 79(1c) of the Act.
Transfer of proceedings
As stated above the application was originally made to the Strata Titles Referee. On 1 January 2005 the SAT Act came into force. By virtue of s 167 of the SAT Act, this matter was transferred to SAT.
In accordance with the transitional provisions of the State Administrative Tribunal Regulations 2004 (WA) (reg 28) the matter is taken to have commenced in the Tribunal. Further, the Tribunal may have regard to any record of the former adjudicator, and I have had regard to the record in relation to this matter.
Compulsory conference
By letter dated 17 March 2005 the Executive Officer gave notice to both parties of a compulsory conference to be held on 30 March 2005 at 10 am. That notice was sent by pre‑paid post and addressed to the applicant at the address for service and to the respondent at her usual residential address in accordance with r 32 of the State Administrative Tribunal Rules 2004 (WA). I find the conference was properly convened.
The applicant attended the compulsory conference in person but the respondent did not attend.
Section 53 of the SAT Act provides as follows.
"53. Failure to attend compulsory conference.
If a party does not attend a properly convened compulsory conference ‑
(a)The conference may proceed at the appointed time in the party's absence; and
(b)If a member of the Tribunal is presiding and all the parties present agree, the Tribunal, constituted by that member, may ‑
idetermine the proceeding adversely to the absent party and make any appropriate orders; or
iidirect that the absent party be struck out of the proceeding."
As a member of the Tribunal presiding at the compulsory conference, I agreed with the applicant that the proceedings should be determined adversely to the respondent. The form of appropriate orders was debated and as they needed to be formulated with some care the matter was adjourned on the basis that I would issue written reasons with the appropriate order.
Before reasons for decision and any order had been prepared the respondent contacted the Tribunal with a letter dated 12 April 2005 in which the respondent stated as follows:
"Further to my telephone call to your office Monday 4/04/05 I apologise for not attending the hearing Wed March 30 2005. I left Perth to go to Queensland on March 16th 2005 and returned April 2nd 2005. I was unaware of any hearing."
The appropriate course forward
In the ordinary course a court or tribunal should be loath to determine a matter in the absence of one of the parties, where that absence is unintentional and not due to any fault on the part of the party concerned. As reasons for decision had not been prepared and no order had been issued I consider that it was open to me to decide not to proceed in the manner conveyed during the conference and instead, to reconvene the conference, or otherwise cause the matter to be determined on the papers.
Section 52 of the SAT Act which governs the convening and conduct of compulsory conferences provides by s 52(7) that the Tribunal member who presided at a compulsory conference is not eligible to constitute, or be one of the members, constituting, the Tribunal for the purpose of otherwise dealing with the proceeding. That provision is of course qualified by s 53 of the SAT Act which is set out above in parenthesis.
By letter dated 10 May 2005 the applicant wrote to the Tribunal pressing for the matter to be determined. In that letter the applicant advised that the situation with the respondent had deteriorated in the month preceding the compulsory conference, with the result that she had applied for a restraining order. She advised that a trial hearing has been set down for September.
In these circumstances, and in the light of the view which I have formed as to the merits of the application, dealt with more fully below, it would serve little purpose to re‑convene the compulsory conference. I am satisfied that the relationship of the parties has deteriorated to such an extent that such a course would serve no useful purpose.
In strata title disputes it is the practice of the Tribunal to review each matter to determine whether it is appropriate for it to be determined on the papers, or whether for any reason, it is more appropriate that a directions hearing be held.
In the circumstances, if I was to regard the respondent's non‑attendance at the compulsory conference as constituting a reason for not proceeding with the course indicated to the applicant at the conference, the only change in the process which would be followed is that another member of the Tribunal would have to be nominated to determine the matter on the papers. That would make it necessary for another member to substantially duplicate work which I have already undertaken. It is not in the interest of the efficient operation of the Tribunal, nor is it in the interest of any of the parties that such a course be followed.
Consequently, I intend to proceed to determine the proceedings adverse to the respondent and to make appropriate orders pursuant to s 53(b) of the SAT Act.
Consideration of the merits
The Strata Plan shows that the drive‑way entering from Hillsborough Drive and running towards lots 6 and 7 is common property. The respondent does not dispute that she parks her motor vehicle on the drive‑way.
It is not clear from the application as to precisely where the respondent keeps her rubbish bin. It is stated to be kept under the applicant's bedroom window but the position of the window is not identified. In the application the applicant acknowledges that she is "pretty sure technically it's on her land"; that is, the respondent's property.
I find that the by‑laws applicable are those set out in Sch 1 and Sch 2 to the Act but with the amendments referred to above, on the basis that the amendments under the notification H563791 AE under the heading Sch 2 by‑laws, are indeed amendments to the standard Sch 2 by‑laws and that the preamble immediately under the heading referring to the special resolution of 27 September 2000 refers to Sch 1 in error.
Even if this conclusion were to be wrong, it would make no difference in relation to the motor vehicle issue, because if the amendments are not to Sch 2, the standard Sch 2 by‑laws would continue to apply and by‑law 1 thereunder is similar in effect to the added by‑law 15; which prohibit in almost identical terms a proprietor, occupier, or other resident of a lot, parking or standing any motor or other vehicle upon common property except with the written approval of the strata company. The only difference is that the added by-law 15 adds the word "prior" immediately before "written approval".
The respondent contends that the applicant, at least initially, indicated that she had no objection to the respondent parking her motor vehicle in the drive‑way. Whether that was the case, or not, makes no difference. Any approval which might have been given, was not effective to change the by‑law and in any event, if it was given, is now withdrawn. The applicant did advise during the conference that she had no objection to the respondent parking her vehicle in the drive‑way provided it was in close proximity to the respondent's garage and did not interfere with her enjoyment of occupation of lot 6.
The application to the Tribunal is brought under s 83 of the Act which sets out the Tribunal's general powers to make orders in settlement of a dispute. The dispute between the parties has arisen because of the allegation that the respondent has allowed a vehicle or vehicles to be parked in positions which have interfered with the applicant's use of lot 6. Consequently, it is open to the Tribunal to make an order which settles that dispute, without the Tribunal enforcing to its full extent the by‑law relating to the parking of vehicles on common property. It was principally for this reason that orders were not made immediately during the compulsory conference, because there is an obvious need for the order to be drafted with precision, so that there is no difficulty in determining whether or not there is compliance with the Tribunal's order. This is important, because of the history of difficulties between the parties which makes it necessary for the Tribunal to make orders in compliance with the provisions of s 95 of the SAT Act, so that any breach of the order will constitute an offence for which a penalty of up to $10 000 can be imposed. The requirements of that section will be reflected in the orders made. One of those requirements is that a copy of s 95 be given and for that reason a typed copy of s 95 will be provided to the applicant with these reasons of decision.
In relation to the complaint concerning the leaving of the respondent's rubbish bin under the applicant's bedroom window, I consider that this constitutes a nuisance. I accept the applicant's assertion that the rubbish creates a stench.
Schedule 1 by‑law 1(2) provides, relevantly, as follows.
"1 Duties of proprietor, occupiers, etc
(2)A proprietor, occupier or other resident of a lot shall ‑
(a)…
(b)"not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to any occupier of another lot (whether proprietor or not) or the family of such an occupier."
Schedule 2 by‑law 11 provides as follows.
"11. Garbage disposal
A proprietor or occupier of a lot‑
(a)shall maintain within his lot, or in such part of the common property as may be authorised by the strata company, in clean and dry condition and adequately covered, a receptacle for garbage;
(b)comply with all local laws relating to the disposal of garbage;
(c)ensure that the health, hygiene and comfort of the proprietor, occupier or other resident of any other lot is not adversely affected by his disposal of garbage."
In these circumstances, I do not consider that it makes any difference whether the respondent's garbage bin is on common property or on the respondent's lot. To place the bin under or near the applicant's bedroom window, constitutes a nuisance which is either a breach of Sch 1 by‑law 1 or a breach of Sch 2 by‑law 11. In the first instance this is because it constitutes a nuisance, and in the second instance because at the very least the comfort of the applicant, as proprietor and occupier of lot 6, is adversely affected by the respondent's disposal of garbage in the bin.
Appropriate Orders
The parking of the respondent's motor vehicle
The strata plan shows that the drive way runs from Hillsborough Drive in an approximately south‑west direction directly towards what I understand is the garage included in lot 7, which is to the rear of the parcel, and in doing so it passes between lots 5 and 6, on the approximately northern side, and lots 2, 3 and 4 on the southern side.
The respondent's garage slightly overlaps the southwestern face of lot 6. This face of lot 6 continues from this point of over lap for approximately 7 metres at which point there is a corner at which the face runs at a right angle in an approximately north west direction. As I understand the applicant has no objection to a motor vehicle being parked within this approximate 7 metre section such that no part of the vehicle protrudes beyond the north west face of the applicant's building to which I referred. This is reflected in the order below.
Garbage bin
There is no need for the Tribunal to direct where the bin must be stored. It must be placed in a position such that it does not constitute a nuisance or adversely affects the applicant's health, hygiene or comfort. This is reflected in the order below.
Compliance with order
As stated above, because of the history of difficulties between the parties, which is ongoing, it is essential that there be compliance with the Tribunal's orders and for that reason I declare that s 95(1) applies. The result is that a person who fails to comply with a decision of the Tribunal commits an offence for which a penalty of up to $10 000 may be imposed.
As it might be contended that the respondent has not had an opportunity to be heard on the decision (which is doubtful in that under the ordinary procedures followed the respondent has filed a response), I shall direct that a copy of the decision, duly certified by the Executive Officer, together with a copy of s 95, be served personally on the respondent. It is the applicant's responsibility to effect service in order to ensure that s 95 of the SAT Act operates. If the applicant has reservations about effecting service personally, or if the terms of any restraining order which may have issued impinge on her ability to do so, it will be incumbent on the applicant to ensure that service is effected by a professional process server. In either event proof of service of these reasons for the decision, the copy of s 95 and the formal order issued with these reasons should be filed with the Tribunal.
Orders
For the above reasons the Tribunal orders as follows:
1.The application be amended to include under the order sought, and at the end of the order presently set out, the following:
"That the respondent remove her garbage bin from under the applicant's bedroom window."
2.The respondent is to ensure that the respondent, or any other occupier, of lot 7 on Strata Plan 38630, or any invitee to the said lot 7, shall not at any time park or stand any motor or other vehicle upon the common property drive way such that any part of the vehicle is to the north east of an imaginary line projected from the face of the external wall of lot 6 which runs approximately in a north‑west to north‑east orientation and which is located approximately 7 metres from the most north‑westerly corner of lot 7 where it meets the drive way.
3.The respondent is ordered to place her rubbish bin in a position such that any odour from the bin does not constitute a nuisance to, and does not adversely affect the health, hygiene and comfort, of the proprietor, occupier or other resident of lot 6 on the said strata plan.
4.Section 95(1) of the SAT Act applies in respect of this decision.
5.The applicant is directed to forthwith effect personal service on the respondent of a copy of this decision, certified by the Executive Officer to be a true copy and the incorporated copy of s 95 of the SAT Act and to furnish the Tribunal with proof of such service.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
Section 95 of the State Administrative Tribunal Act 2004
Failing to comply with decision
(1)A person who fails to comply with a decision of the Tribunal commits an offence.
Penalty: $10 000.
(2)Subsection (1) does not apply if, or to the extent that, the decision is a monetary order.
(3)Subsection (1) does not apply in relation to a decision unless ¾
(a) the Tribunal, in the decision, declares that subsection (1) applies; or
(b) after a person fails to comply with the decision, the Tribunal makes an order declaring that subsection (1) applies and the failure continues after notice of that order is served on the person.
(4)If the Tribunal made the decision without giving a person an opportunity to be heard, subsection (1) only applies to that person on the person being given personally or in accordance with subsection (5) ¾
(a) a copy of the decision that a judicial member or the executive officer has certified to be a true copy; and
(b) a copy of this section.
(5)If the Tribunal is satisfied that it is not possible or appropriate for a person to be personally given the documents referred to in subsection (4), the Tribunal may specify another method for service of the documents on the person under that subsection."
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