CHAN and THE OWNERS OF EAST FREMANTLE SHOPPING CENTRE WEST STRATA PLAN 8618 - [2006] WASAT 345

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: CHAN and THE OWNERS OF EAST FREMANTLE SHOPPING CENTRE WEST STRATA PLAN 8618 [2006] WASAT 345

MEMBER: JUSTICE M L BARKER (PRESIDENT)

HEARD: 24 OCTOBER 2006

DELIVERED : 27 NOVEMBER 2006

FILE NO/S: CC 913 of 2006
CC 828 of 2006
CC 2868 of 2005

BETWEEN: KHENG SU CHAN
Applicant
AND
THE OWNERS OF EAST FREMANTLE SHOPPING CENTRE WEST STRATA PLAN 8618
Respondent

Catchwords:

Strata Titles Act 1985 (WA) - Strike out application - Proceedings struck out under s 47 State Administrative Tribunal Act 2004 (WA)

Legislation:

State Administrative Tribunal Act 2004 (WA), s 47, s 47(1)(a), s 47(1)(b), s 47(1)(c), s 87(2)
Strata Titles Act 1985 (WA), s 35, s 83(1), s 90, s 97

Result:

Proceedings struck out

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Ms K Whitehead

Solicitors:

Applicant: Self-represented
Respondent: Godfrey Virtue & Co

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

Chan and The Owners of East Fremantle Shopping Centre West Strata Plan 8618 [2005] WASAT 302

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal struck out proceedings under s 47 of the State Administrative Tribunal Act 2004 (WA).

The issue

The issue in each of proceedings CC 828 of 2006 and CC 913 of 2006 is whether the proceeding should be struck out or otherwise dismissed.

Facts

The applicant has commenced the following proceedings:
•Historically, in CC 2868 of 2005, on 21 July 2005 the applicant commenced proceedings against the respondent strata company seeking orders for the appointment of an administrator. At the same time an application was made for an interim order pursuant to s 97 of the Strata Titles Act1985 (WA) invalidating a resolution passed at an extraordinary general meeting of the strata company on 14 July 2005. The application for the interim order was made on the grounds that the resolution had been passed for an ulterior purpose and that the notice of the resolution was not adequately clear. The proceedings were then struck out.
•Currently, in CC 828 of 2006, on 8 June 2006 the applicant commenced proceedings seeking a declaration that the extraordinary meeting of the strata company held on 22 May 2006 and resolutions passed at it are invalid "ab initio"; and a declaration pursuant to s 35 of the Strata Titles Act 1985 (WA). The applications are made on the basis that the resolutions passed at the meeting were "illegal and fraudulent" and that they sought the payment of legal fees from the applicant after she had paid the taxed costs and was "targeted to pay levies among others who had failed to do so and who had not been so targeted".
•Currently, in CC 913 of 2006, on 20 June 2006 the applicant sought an order pursuant to s 83(1) of the Strata Titles Act 1985, a declaration pursuant to s 35 and an order pursuant to s 90 of the Strata Titles Act 1985 for all proper papers and documents to be made available for an audit from 1 July 2000 to 1 July 2005. The application is made on substantially the same grounds as that of CC 828 of 2006.
In proceeding CC 2868 of 2005 the Tribunal through Senior Member Raymond dismissed the applicant's application for an interim order and dismissed the main application. As the summary of the Tribunal's previous decision, Chan and The Owners of East Fremantle Shopping Centre West Strata Plan 8618 [2005] WASAT 302 indicates, the Tribunal concluded that in some respects no serious issue for determination at a final hearing was raised. To the extent that it might be assumed there was a serious issue for determination, the balance of convenience did not justify the grant of interim relief. Further as the substantive application was struck out, there were no proceedings ensuing to which interim relief could be granted and, in any event, no urgent circumstances had been demonstrated. For those reasons the application was dismissed. The Tribunal at [9] expressly found that there was no serious issue for determination in relation to the applicant's assertion that the impugned resolution was passed for an ulterior motive.
In proceeding CC 2868 of 2005, the resolution in question concerned a levy to fund legal action. The applicant had asserted that the strata company had sufficient accumulated funds to do this and did not need to impose a levy on lot owners. It was in relation to this assertion that the Tribunal in particular found there was no serious issue for determination. The applicant did not produce any accounts to permit any assessment to be made of expenditure. Nor did the Tribunal consider it necessary to enter into any detailed examination of the issues raised in the proposed litigation for which the levy was made. It was enough to note that a clear majority of the lot owners supported the proposed litigation.
On 3 July 2006 the applicant sold Lot 13 Strata Plan 8618 on condition that "the vendor reserves the right to recover any levies, damages and compensation" from the strata company after settlement. She now seeks to rely on that provision to maintain the two current proceedings against the strata company.

In proceeding CC 828 of 2006, the applicant on 18 August 2006 filed in the Tribunal a statutory declaration in which she makes a number of serious claims or allegations including that:
•the property sold at $220 000 below mortgage value "so to avoid dealing with K Whitehead and P Monaco whom I had complained to the Legal Practice Board";
•"ASIC confirmed ... Monaco falsified his middle name ... and had misled the public to believe there was a separate person. P Monaco was the national agent for ASIC".
Then on 5 October 2006, the applicant filed a further set of documents styled as affidavits in which she made a number of allegations against "K Whitehead/P Monaco".
Ms Whitehead and Mr Monaco are solicitors formerly with the practice with Godfrey Virtue & Co and now with GV Lawyers.
In CC 913 of 2006 on 11 September 2006 the applicant had also filed papers in the Tribunal making allegations against Mr Monaco.
Additionally, on 25 October 2006, following the hearing of the application for strikeout for which the Tribunal reserved its decision, the applicant filed a bundle of documents in the Tribunal including a statutory declaration made 25 October 2006 and a bundle of documents under cover of a letter addressed to the Chief Justice of the Supreme Court of Western Australia, the President of the Tribunal, the Attorney General of Western Australia and the Chairperson of the Legal Practitioners Complaints Committee. The statutory declaration repeats certain allegations made in the earlier documents but also makes some new allegations against the former strata titles referee, who dealt with strata matters prior to the commencement of this Tribunal, in respect of which the applicant says:
"I now demand a Statement for the Reason for dismissal of case from [the former strata titles referee] of law firm [left intentionally blank] now representing the owners of [the strata company] ..."
In relation to the applications the strata company has caused the following responses to be filed:
•the affidavit of Russell Quinn sworn 11 September 2006 and filed in the Tribunal on 12 September 2006 in CC 2868 of 2005 together with attachments;
•the affidavit of Pino Anthony Monaco sworn 16 October 2006 together with attachments in relation to all proceedings.
As far as the facts relevant to each of these proceedings is concerned I consider those set out in the affidavit of Mr Monaco to be established facts upon which the Tribunal can rely for the purposes of the strikeout applications.
At all times Godfrey Virtue & Co and more recently GV Lawyers (the successor firm to Godfrey Virtue & Co) have represented the strata company in the various proceedings brought by the applicant in the Magistrates Court, the District Court and this Tribunal. The applicant has not succeeded in any actions brought against the strata company whilst these solicitors acted for the strata company as solicitors on the record of the court or tribunal concerned.
The strata company has brought only one action against the applicant, and that was an action for recovery of outstanding strata levies taken in the former Local Court (now Magistrates Court). The strata company successfully brought a summary judgment application in that court. The applicant appealed this to the District Court but was unsuccessful. The Local Court judgment stands against the applicant.
In the affidavits of the applicant referred to earlier, including those of 4 October 2006 and the statutory declaration of 3 October 2006, the applicant makes a number of allegations concerning having been "double charged" by the strata company or the solicitors or Ms Whitehead or Mr Monaco. There is no apparent basis to these allegations. They are not in any event relevant to the current proceedings in the Tribunal.
The applicant makes additional allegations that the solicitors applied pressure to the applicant to sell Lot 13 to the currently registered proprietors.
There is not a shred of evidence to support this claim. The solicitors had no involvement in the sale or settlement save from being informed of progress of the sale by Mr Quinn.
In that regard, I also accept what Mr Monaco says, that he is informed by Mr Quinn and believes that the applicant was represented by a reputable settlement agent in the sale, and had access to and utilised a legal practitioner during the sale in relation to another litigation matter that was then on foot in which the applicant was legally represented.
The materials before the Tribunal show that the strata company has only commenced one legal action against the applicant for recovery of outstanding strata levies in 2004. This action was successful. The applicant has initiated all other litigational proceedings against the strata company.
In the proceedings CC 2868 of 2005, Senior Member Raymond ultimately summarily dismissed the proceeding for being an abuse of process.
In District Court Appeal 141 of 2005, the applicant failed in her appeal which was dismissed with costs to be paid by her to the strata company.
The applicant in her materials makes reference to SAT Proceedings CC 716 of 2006, CC 995 of 2006, Magistrate Court Action 1924 of 2005, 5931 of 2006, 6419 of 2006. The strata company is not a party to any of these proceedings.
As to a further allegation that there are proceedings in the Tribunal of a professional nature involving the solicitors, that is not so. While a complaint has been made by the applicant about the solicitors, the Legal Practitioners Complaints Committee has stated as follows:
"I confirm that I have received a complaint from Dr Chan in respect to yourself. I also confirm that this matter has not been to the Legal Practitioners Complaints Committee for determination and no finding has been made against you of unprofessional conduct, or indeed, any findings at all."
As to allegations made in the applicant's materials that Ms Whitehead placed warrants on the certificates of title of the applicant, this simply is not so. The fact is that warrants of execution were registered by the solicitors, as solicitors for its client, for judgments awarded in the Local Court.
On the materials lodged in the Tribunal there simply is no proper basis for the primary allegation made by the applicant that she sold Lot 13 at a depressed price or by reason of any action of the strata company or the solicitors that gives rise to any jurisdiction in this Tribunal.
Indeed, the variety of the allegations made in the materials filed in the Tribunal, include those filed more recently on 25 October 2006, disclose a tendency of the applicant to act vexatiously, in a legally embarrassing fashion and by way of abuse of process of the Tribunal's processes. None of the various matters raised, essentially by way of personal abuse against the solicitors, is relevant to any of the current proceedings commenced in the Tribunal.
Furthermore, on the basis of the materials filed in the Tribunal, it is not possible to see how the proceedings could have any chance of success, reasonable or otherwise.
In circumstances where the applicant is no longer a person with any relevant proprietary or statutory interest in the activities of the strata company, I cannot see any basis at all for her to maintain the proceedings under the Strata Titles Act 1985 against the strata company.

The conclusion

In these circumstances, I consider that each of the two current proceedings should be struck out pursuant to s 47(1)(a), s 47(1)(b) and s 47(1)(c) of the State Administrative Tribunal Act 2004 (WA).
I so rule because I consider that the proceedings are:
(a)frivolous, vexatious, misconceived and lacking in substance;
(b)are being used for improper purpose, namely to pursue the solicitors who acted for the strata company in other court proceedings;
(c)are otherwise an abuse of process because the applicant is simply using the forum of the State Administrative Tribunal as a means of making scurrilous allegations against the solicitors who have acted and are acting for the strata company.

Costs

I note that the strata company seeks costs in the event that this strike out application is successful. In many circumstances where proceedings are struck out a cost order might favour the successful party. However, in a case such as this, I do not think that the Tribunal's discretion to award costs under s 87(2) of the State Administrative Tribunal Act 2004, should be exercised. I say this for two main reasons. First, the applicant is and has been a self-represented party. Whilst she has both misconceived her entitlement to bring proceedings in the Tribunal, and has acted for the improper purpose or in abuse of process in the ways I have described, I consider this is largely due to the fact that she has no proper understanding of the Strata Titles Act 1985 or her legal position and has allowed her emotional grievances to dictate the course of action she has taken. Secondly, I consider that an award of costs in the circumstances would fruitlessly prolong a dispute between the parties.
In the circumstances therefore it is enough for the Tribunal simply to strike out all of the proceedings.

Orders

The Tribunal makes the following orders:
1.The Tribunal notes that proceedings CC 2868 of 2006 were struck out in 2005 and are at an end.
2.Proceedings CC 828 of 2006 and CC 913 of 2006 are struck out pursuant to s 47(1)(a), s 47(1)(b) and s 47(1)(c) of the State Administrative Tribunal Act 2004 (WA).
3.No order as to costs.

I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE M L BARKER, PRESIDENT