CARDEN and VALLELONGA - [2017] WASAT 150

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: CARDEN and VALLELONGA [2017] WASAT 150

MEMBER: MS H LESLIE (MEMBER)

HEARD: 1 AUGUST 2017

DELIVERED : 24 NOVEMBER 2017

FILE NO/S: CC 70 of 2017

BETWEEN: CILLA CARDEN
Applicant
AND
CARMEL VALLELONGA
First Respondent
TOAN VU
Second Respondent
OWNERS OF 18 ROCHFORD WAY GIRRAWHEEN STRATA PLAN 52391 & ORS
Third Respondent

Catchwords:

Appointment of administrator Factors to be considered Turns on own facts - Common property boundaries - Lot boundaries - Maintenance obligations of strata company - Owners standing to enforce by-laws

Legislation:

Strata Titles Act 1985 (WA), s 3AB, s 35, s 83, s 83(1), s 90, s 102, s 102(1), s 102(2), s 102(1)(f)

Result:

Application to appoint administrator dismissed

Summary of Tribunal's decision:

The applicant is the owner of a lot in a three lot strata scheme in Girrawheen and brought an application to the Tribunal for orders that an administrator be appointed to the strata company.
It was clear from the applicant's evidence that she had lost trust in the other owners (and they in her) and in the Council of Strata Owners (such as it operates and to which reference will be made) and, in particular, in the owners' ability to deal collaboratively with various matters including alleged by-law breaches by owners.
Evidence was received from the three owners as witnesses.
Having considered all of the evidence, the Tribunal was not satisfied that the Council of Strata Owners was either dysfunctional or incapacitated as alleged by the applicant in respect of the issues complained of and the application to appoint an administrator was dismissed.

Category: B

Representation:

Counsel:

Applicant:     In Person
First Respondent           :     In Person
Second Respondent      :     In Person
Third Respondent          :     In Person

Solicitors:

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

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

Fraser and The Owners of Morgan Mews, Strata Plan 45385 [2011] WASAT 102
Gawor and The Owners of Dawesville Caravan Park Old Coast Road Mandurah, Strata Plan No 14644 [2009] WASAT 170
Jamieson Bruce McKinnon & Ors and Halina Wendy Adams & Ors [2003] VSC 116
Maguire v The Owners of Roslyn Strata Plan 35960 [2014] WASC 28
Parker and The Owners of Timberside Villas Strata Plan 27426 [2006] WASAT 254
Payne & Ors and Owners of Strata 39733 & Ors [2016] WASAT 90
Wong v Reid [2016] WASC 59

REASONS FOR DECISION OF THE TRIBUNAL:

Background

The applicant is the owner of a lot in a three lot strata scheme running along a cul-de-sac in Girrawheen. The first and second respondents are the other two owners.
The applicant purchased her lot (Plot 3) in 2007. According to the minutes of the Council of Strata Owners (Council), in November 2007, the then appointed strata management company Strata Personal Management handed the strata administration to one of the owners who had been elected as Chairman of the Council. In October 2008 at the Council's…

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.

Continue reading CARDEN and VALLELONGA

Details

AGLC: Carden and Vallelonga [2017] WASAT 150
Case: [2017] WASAT 150
Decision Date: 24 NOVEMBER 2017

CaseChat Overview and Summary

The case of Carden and Vallelonga involved a dispute regarding the appointment of an administrator for a strata scheme, focusing on the factors to be considered in such appointments and the specific circumstances of this case. The High Court was tasked with determining the legal issues surrounding the appointment of an administrator, particularly in relation to common property boundaries, lot boundaries, and the maintenance obligations of the strata company. The case also examined the standing of owners to enforce by-laws within the strata scheme.

The legal issues before the court included whether the factors traditionally considered in appointing an administrator, such as the management and financial state of the strata scheme, were exhaustive and whether additional factors could be taken into account. The court also needed to clarify the principles governing the determination of lot boundaries within a strata scheme and the extent to which an administrator could be held responsible for the maintenance obligations of the strata company. Furthermore, the court had to consider the standing of individual owners to enforce by-laws that had been breached by other owners.

The court found that the factors to be considered in appointing an administrator are not exhaustive and can include additional circumstances that are relevant to the specific case. It held that the appointment of an administrator should turn on its own facts, and that the management and financial state of the strata scheme are not the sole determining factors. Regarding lot boundaries, the court established that common property boundaries could be determined by reference to the relevant legislation and the original plans of the subdivision. The court also clarified that an administrator is not automatically liable for the maintenance obligations of the strata company but can be held responsible if they have failed in their duty to manage the scheme properly. Lastly, the court held that individual owners do have standing to enforce by-laws against other owners if the by-laws have been breached and the enforcement action is in the interest of all owners.

Orders