CHENG and THE OWNERS OF KASHMIR - 365 CAMBRIDGE STREET WEMBLEY STRATA PLAN 5697
[2005] WASAT 244
•9 SEPTEMBER 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: CHENG and THE OWNERS OF KASHMIR - 365 CAMBRIDGE STREET WEMBLEY STRATA PLAN 5697 [2005] WASAT 244
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: DECIDED ON THE PAPERS
DELIVERED : 9 SEPTEMBER 2005
FILE NO/S: ST 120 of 2004
BETWEEN: HO MAN CHENG
Applicant
AND
THE OWNERS OF KASHMIR - 365 CAMBRIDGE STREET WEMBLEY STRATA PLAN 5697
Respondent
Catchwords:
Rental property - Strata title - Disputed recovery of repair costs
Legislation:
State Administrative Tribunal Act 2004 (WA), s 167(4)(b)
State Administrative Tribunal Regulations 2004 (WA), reg 28
Strata Titles Act 1985 (WA), s 36, s 38, s 39, s 83
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary
The applicant, occupier of lot 49 on strata plan 5697, known as unit 401, 365 Cambridge Street, Wembley, applied under s 83 of the Strata Titles Act 1985 (WA) for an order, in effect, declaring that he was not liable for the costs of a plumber attending at the premises on 12 July 2004.
The amount charged by the plumber of $154 was added to the quarterly levy account.
The Tribunal reviewed the provisions of the Strata Titles Act 1985 under which the respondent was entitled to raise a levy and/or otherwise recover the cost of any work on or in relation to a lot, and concluded that the respondent was not entitled to recover the costs.
The application was accordingly granted and an order made declaring that the applicant was not liable for the plumbing costs.
Issue for determination
An order is sought determining whether the respondent is able to recover from the applicant the cost of charges made by a plumber for attending at the lot occupied by the applicant.
Application transferred to the State Administrative Tribunal
The application was originally made to the Strata Titles Referee and was transferred to the State Administrative Tribunal on 1 January 2005 pursuant to s 167(4)(b) of the State Administrative Tribunal Act 2004 (WA). Pursuant to reg 28 of the State Administrative Tribunal Regulations 2004 (WA), the Tribunal is entitled to have regard to any record of the proceedings before the Strata Title Referee, including anything done or omitted to be done in relation to the matter by a party or other person before the matter was transferred to the Tribunal. The Tribunal has acted accordingly.
Strata plan and parcel
Strata plan 5697 was registered on 1 February 1978 and comprises of a parcel of land described as lot 4 of Swan Loc. 388 on Dia. 40066.
The parcel is improved by the construction thereof of a brick and tile multi-level residential complex of 72 units.
The applicant is the occupier of lot 49. The owner of lot 49 is Wye Jing Yip.
Notification is endorsed on the register of two changes of bylaw, being by way of notification B487638 registered on 7 March 1978 and notification G361943 registered on 27 December 1996.
The strata plan was originally registered pursuant to the Strata Titles Act 1966 (WA) (the 1966 Act). In 1985, the 1966 Act was repealed and replaced by the Strata Titles Act 1985 (WA) (the Act).
By virtue of the operation of s 42(2) of the Act, any bylaws in operation under the 1966 Act ceased to have effect and, instead, the provisions set out in Sch 1 and Sch 2 to the Act are deemed to be the bylaws of the strata company save to the extent that they may be amended, appealed or added to by the strata company.
The change of bylaws, after the coming into effect of the Act, by notification G361943 registered on 27 December 1996 reflects the repeal of the earlier bylaws and the adoption of the Sch 1 and Sch 2 bylaws under the Act, save for the addition of certain bylaws which do not bear upon the issue raised by this application.
Further, there is nothing within the standard bylaws, as amended, which has any application to these proceedings.
Background facts established
On 12 July 2004, a plumber from the firm, Five Star Plumbers, attended at unit 401/365 Cambridge Street, Wembley, that is, lot 49 of strata plan 5697.
The plumber arrived without warning and was let in by the applicant who thought that his uncle, the son of the owner, must have arranged for the plumber to attend.
The facts of what then occurred are set out in a letter from the applicant's uncle, Tim Sau Cheng, which is undated, but was received by the Strata Titles Referee on 1 December 2004. Mr Cheng stated that, while the plumber was dismantling part of the plumbing, his nephew telephoned to advise of what was occurring. Mr Cheng then spoke to the plumber, who advised that Mr Cheng could be responsible for his work and charges. As Mr Cheng could not contact the strata manager as it was then outside working hours, he asked the plumber to leave.
The plumber did so, leaving the toilet and cistern disconnected from each other. This created obvious hygiene difficulties. Mr Cheng put forward costs totalling $203, which he wished to recover. This includes an amount of $100 for time and travelling costs for fixing the pipe back to the cistern and toilet.
The applicant discloses in the application that he subsequently received the levy, which had included in it the plumber's charges of $154. A separate account for that amount was attached to the application but is directed to Urban West Strata Services Pty Ltd, the respondent's strata managers.
In a letter dated 21 December 2004, the said strata managers confirmed that the respondent had paid the plumber's account and had then included the amount in the quarterly levy account.
Relevant legislative provisions
Section 36 of the Act governs the basis upon which a levy can be raised against proprietors to establish a fund for administrative expenses sufficient for the control and management of the common property, payment of insurance premiums and a discharge of any other obligations of the strata company. By virtue of s 36(1)(c), the amount raised must be in proportion to the unit entitlements or in accordance with a bylaw or an order made by the Tribunal.
Section 38 of the Act governs the circumstances in which the strata company may carry out work on or in relation to a lot. In effect, the right to carry out work arises if a proprietor has not complied with a notice by a public authority or local government, or an order of a court or tribunal. By s 38(4), where the strata company carries out such work, it may recover the cost of so doing as a debt in a court of competent jurisdiction.
Section 39 of the Act empowers the strata company to enter upon any part of the parcel for the purpose of carrying out work, relevantly under s 38 as referred to above. There are a number of other stated circumstances in which the strata company may enter, none of which appear to be applicable. In all cases in which a right to enter exists, the strata company may do so, in the case of an emergency, at any time, or, in any other case, at any reasonable time on notice given to an occupier of that part of the parcel.
Consideration
It is not disputed that no notice was given to the applicant, occupier, of the lot. There was, however, permission given to enter, which was shortly thereafter withdrawn by Mr Cheng, the son of the proprietor.
There is nothing within s 36 which provides the respondent with any authority to increase the quarterly levy by the amount incurred in respect of the plumber's attendance at the lot.
Further, no notice had been served on the proprietor of the lot by a public authority, local government or tribunal, which, if not carried out, would have provided the respondent with legislative authority to carry out the work.
In the circumstances, the Tribunal determines that the respondent is not entitled to recover the costs of its plumber attending at the lot on 12 July 2004 in a total amount of $154 and an order will issue accordingly. Insofar as Mr Cheng has, by way of his undated letter received on 1 December 2004, raised a claim for payment of costs and damages totalling $203, the Tribunal declines to make any order for the following reasons.
Firstly, it is not established that Mr Cheng has any interest in the lot and, therefore, that the Tribunal has jurisdiction to make an order under s 83 of the Act and he is not a party to the proceedings.
Secondly, $103 of the claim relates to the cost of lodging the application and obtaining copies of the strata plan and record of certificate of title. Those are costs incurred in the proceedings. Ignoring any difficulty which might arise because Mr Cheng is not the applicant, the recovery of such costs are, in any event, precluded by s 81(7) of the Act, which provides that the Tribunal cannot make any order for the payment of costs in connection with an application save in particular circumstances which are not relevant.
Thirdly, an amount of $100 is claimed, in effect, as damages or compensation, for replacing the parts of the toilet removed by the plumber and for attending at the office of the Department of Land Information. There is no breakdown of time for the two activities. Time spent in repairing the toilet might be recoverable in a separate application by Mr Cheng but, in any event, he has incurred no out-of-pocket expense and evidence would be required to establish the reasonable and necessary cost of such work. The cost of attending at the office of the Department of Land Information is part of the cost of the proceedings, and for the reasons stated above, the Tribunal cannot award such costs.
Order
For the above reasons, the Tribunal orders:
1. The respondent is not entitled to recover from the applicant, or from the proprietor of lot 49, the cost of Five Star Plumbers attending at lot 49, also known as 401, 365 Cambridge Street, Wembley, in an amount of $154.
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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