Clark and Benstead and ORS
[2007] WASAT 12
•18 JANUARY 2007
CLARK and BENSTEAD & ORS [2007] WASAT 12
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 12 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:1459/2006 | EDITED REASONS HEARD ON 13 AND 23 NOVEMBER 2006 AND DELIVERED EXTEMPORANEOUSLY ON 23 NOVEMBER 2006 | |
| Coram: | MR T CAREY (MEMBER) | 17/01/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | RICHARD MELVILLE CLARK GRAHAM SYDNEY BENSTEAD RICHARD MITFORD ROWELL ELIZABETH PATRICIA BLACK COUNCIL OF THE OWNERS OF ROSNEATH FARM STRATA PLAN 35452 |
Catchwords: | Strata titles Failure to perform duties as chairman and treasurer of strata company alleged constituted by refusal to sign form for application for resubdivision Whether occasion for signing form had arisen Whether plan complied with by-laws of prescribed kind Survey Strata Plan 35452 |
Legislation: | Strata Titles Act 1985 (WA), s 8A, s 8A(a)(ii)(I), s 8A(a)(ii)(II), s 51, s 83 |
Case References: | Nil Nil |
Orders | 1. The application is dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : CLARK and BENSTEAD & ORS [2007] WASAT 12 MEMBER : MR T CAREY (MEMBER) HEARD : EDITED REASONS HEARD ON 13 AND 23 NOVEMBER 2006 AND DELIVERED EXTEMPORANEOUSLY ON 23 NOVEMBER 2006 DELIVERED : 18 JANUARY 2007 FILE NO/S : CC 1459 of 2006 BETWEEN : RICHARD MELVILLE CLARK
- Applicant
AND
GRAHAM SYDNEY BENSTEAD
RICHARD MITFORD ROWELL
ELIZABETH PATRICIA BLACK
COUNCIL OF THE OWNERS OF ROSNEATH FARM STRATA PLAN 35452
Respondents
Catchwords:
Strata titles - Failure to perform duties as chairman and treasurer of strata company alleged constituted by refusal to sign form for application for resubdivision - Whether occasion for signing form had arisen - Whether plan complied with by-laws of prescribed kind - Survey - Strata Plan 35452
(Page 2)
Legislation:
Strata Titles Act 1985 (WA), s 8A, s 8A(a)(ii)(I), s 8A(a)(ii)(II), s 51, s 83
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr DF Beere and Mr G Kelly
Respondents : Mr GMG McIntyre SC
Solicitors:
Applicant : Beere & Meyer
Respondents : Christopher Garvey
Case(s) referred to in decision(s):
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicant sought the Tribunal's intervention to secure the signatures of office holders of a strata company on a form which, when registered, would facilitate a resubdivision of a strata scheme.
2 As originally framed, the applicant relied upon one of the two statutory alternatives for lodgement of a plan of resubdivision, upon the unanimous resolution of the strata company as to certain prescribed matters. On the respondents pointing out that no such resolution had been passed, the applicant relied upon the second alternative of compliance with bylaws in the scheme's management statement of a prescribed kind. The Tribunal decided that the by-laws relied upon were not of the kind prescribed and that the form submitted for signature could not and did not purport to confirm compliance with the by-laws for which the applicant contended, and dismissed the application.
3 The Tribunal gave its decision orally following the hearing. Its reasons, taken from the transcript, and edited to include a summary of the decision and otherwise in minor respects to aid clarity, were as follows.
Introduction
4 The applicant sought orders the effect of which were to secure the signing of a form for an application for resubdivision by the strata company in the prescribed Form 20. According to his Statement of Issues, Facts and Contentions, the applicant claimed to be entitled to one or more of the orders sought, based on a declaration of the District Court on 23 August 2006 under s 51 of the Strata Titles Act1985 (WA) (ST Act) that a resolution of the strata company on 14 January 2006, which was not passed as a unanimous resolution or a resolution without dissent but was passed to the extent necessary for a special resolution in favour of a particular resubdivision of the survey-strata plan, was sufficient to authorise the resubdivision, and that the strata council's office bearers had refused and were refusing to sign the Form 20.
5 I will not go into the details of the scheme or the ongoing disputation between the distinct groups of proprietors, of which this matter is another example, in any detail. These are matters which are documented in other decisions of the Tribunal, as well as the Supreme and District Courts.
6 The resolution was in the following terms:
(Page 4)
- "That Lot 25 on certificate of title volume 2195 folio 469 be further subdivided by the creation therefrom of Lots 2, 3, 4, 5, 6, 7, 8, 44, 56, 58, 59, 66, 69 and 70, as designated on the plan of subdivision attached to the agreement, for staged development with each proprietor."
7 Lot 25 is the super-lot in the applicant's name. The proposed resubdivision would permit the creation from Lot 25 of 14 new lots which the applicant could then sell if he wished.
8 The Form 20, which was submitted for execution, is in evidence and reads relevantly as follows.
"Form 20
APPLICATION FOR RE-SUBDIVISION BY STRATA COMPANY
Strata Titles Act 1985
Sections 8A, 18 & 19
The Owners of Rosneath Farm survey-strata plan no. 35452 requests that the Registrar of Titles registers this survey-strata plan of re-subdivision and confirms that:
(a) it has by unanimous resolution consented to the resubdivision of Lot 25 on the survey strata plan into fifteen (15) lots as set out below; and
(b) (i) the proposed aggregate unit entitlement; and
(ii) the proposed allocation of unit entitlement set out below
are prescribed by the management statement lodged with the Registrar of Titles in relation to the strata plan and dated 13 January 1999.
- PROPOSED ALLOCATION OF UNIT ENTITLEMENT
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9 The short point which the application raises is whether the occasion for the signing of the Form 20 has yet arisen. There is no issue that if the occasion has arisen, then it would be appropriate that the first respondent, Benstead, as chairman of the strata company and the council of owners, and the second respondent, Rowell, as treasurer of the strata company, be ordered, in those capacities, to sign.
The parties' contentions
10 The respondents - although there are four named respondents it is Benstead and Rowell who are alleged to have failed in their duties, thus bringing the circumstances within s 83 of the ST Act, and it is in relation to those two people that I use the term - submitted that the requirements for a plan of resubdivision referred to in s 8A of the ST Act have not been met, and therefore the occasion for the signing of the Form 20 has not arisen. They relied upon the requirement in s 8A(a)(ii)(I) that the Form 20 confirm that the strata company has, by unanimous resolution, consented to the proposed resubdivision and to the proposed allocation of unit entitlement. The agreed fact is that although there is effectively a unanimous resolution of the first matter mentioned, there is none of the second. That being the case, the completed Form 20 could not, as a matter of fact, and did not, purport to confirm the second matter.
(Page 6)
11 The applicant argued that the respondents' submission ignored the alternative provided by s 8A(a)(ii)(II) of compliance with any by-laws of the kind described in item 8 in Sch 2A. Schedule 2A is a list of matters that may be provided for in a management statement lodged for registration in accordance with s 5C at the time a survey strata plan is lodged. Item 8 refers relevantly to provisions relating to any proposed resubdivision in a scheme, being provisions that state the proposed unit entitlement of each lot and the proposed aggregate unit entitlement of the scheme, following the completion of all proposed resubdivisions in the scheme. According to the applicant, this reflects a policy that if, at the time of registration of a scheme, there is established a predetermined allocation of lots and that appears in a management statement, then there is no need to pass further resolutions to carry that allocation into effect. This submission might be accepted as far as it goes, but in my view, it leaves unstated the important incident of registration of by-laws that puts the whole world on notice of their contents. I will come back to this point.
Consideration
12 The applicant's contention raises for determination the question of whether the plan of resubdivision in this case did comply with any bylaws in the management statement applying to the scheme of the kind described in item 8 of Sch 2A. The applicant did not seek to argue on the basis of the alternative that the plan sufficiently complied with any such by-laws in a way that is allowed by the regulations.
13 The management statement was the subject of another application to the Tribunal, as a result of which some of its provisions were omitted and others had words excised. The management statement as so varied was in evidence. Bylaws 19 and 20, which appear under the heading "Varying levies under section 42B", read as follows:
"19. Unless varied by a resolution without dissent of the strata company, calculation of the levies will be based on the unit entitlements for individual lots that have been established by a licensed valuer on 9 October 1997 as contained in the disclosure statement.
20. The total number of units and the unit entitlements of the individual lots will remain unaltered unless so determined by a licensed valuer."
(Page 7)
14 It is agreed that the reference in by-law 19 to unit entitlements having been established by a licensed valuer is to a schedule prepared by Copeland Valuation Service, a copy of which is before the Tribunal but which was not attached to the management statement, and the contents of which were not incorporated into the management statement in any way, other than by reference to that valuation.
15 The valuation indicated that the land the subject of the plan will ultimately be subdivided into 70 lots in addition to eight common property lots, and gave the unit entitlement of each lot once that objective is realised. It is also an agreed fact that a plan entitled "Rosneath Farm", showing the whole development with lots numbered for the management statement, was registered by the Registrar of Titles at the time the scheme and management statement were registered. That plan is in evidence, and it indicated the physical layout of the 70 lots as they were envisaged on completion of the subdivision, but made no reference to unit entitlements of the lots, either individually or in aggregate.
16 There was a further document in evidence entitled "Notice re unit entitlement schedule from valuer" (Notice). The parties were in dispute as to whether the Notice was lodged at the time of registration of the scheme, or whether, as the respondents contended, some other document dealing with unit entitlement allocation was lodged.
17 But dealing with the Notice, it said in the first paragraph:
"The valuer was instructed to provide a schedule of unit entitlements for all of the lots, so that levies and any other resolutions without dissent could if necessary be weighted by the valuer of the unit entitlements of each block against the whole. They arbitrarily assigned 10,000 units to the whole 70 lots and then looked at each lot and determined its unit entitlement vis a vis other lots. The lowest number of units is 110 and the highest 225. The proprietor of the lot with 110 units will pay less than half the levy of the latter lot."
18 If this were indeed the relevant document, it describes the method of assignment of unit entitlements, but it does not state what the unit entitlements of all lots following completion of all resubdivisions would be. The position, therefore, is that neither by-law 19 itself nor the documents which were filed at the time of registration of the scheme contained the statement of proposed unit entitlement of each lot and the proposed aggregate unit entitlement to which item 8 in Sch 2 refers.
(Page 8)
- It is true that the bylaw refers to the unit entitlements having been established by the Copeland valuation, and by-law 20 goes on to deal with how the unit entitlements might be altered.
19 The Notice to which I have just referred made reference to the aggregate of units, but in my view, this is not sufficient. In order to comply with item 8, the by-law must state the entitlements postresubdivision, so that anyone searching the title can be apprised of them and be in a position to make decisions based on that information. The applicant's reliance on the fact, which was established on the evidence, that all current lot owners were made aware of the proposed unit entitlements because the Copeland valuation formed part of the disclosure documents prior to the purchase of their respective lots, does not overcome the omission in by-law 19 and any contemporaneously registered document of such a statement.
20 Again, the Form 20 submitted for execution could not, as a matter of fact, and did not, purport to confirm that the plan of resubdivision complied with any by-law in the management statement that stated the individual and aggregate unit entitlements to which item 8 refers. It was, in fact, drafted with an eye to the first of the s 8A(a)(ii)(II) alternatives. The Form 20 in the form in which it was submitted is either inadequate or inappropriate for the statutory purpose which it was intended to serve. Further, there has not yet occurred an occasion on which any Form 20 can be executed. On this basis, the application must be dismissed.
21 In a sense, the way in which the applicant pursued the matter in the Tribunal is indicative of the weaknesses of his application. The application as originally framed sought an order that the respondents execute the Form 20 to give effect to the resolution to subdivide Lot 25, passed by the general meeting of the strata company on 14 January 2006. This is an allusion to the resolution which was deemed by the declaration of the District Court as sufficient to authorise the resubdivision. Once the significance of the failure of the resolution to address the proposed allocation of unit entitlement was exposed, the applicant sought to rely on the alternative prescription in s 8A(a)(ii)(II). Reliance on this provision rendered reliance on the resolution of 14 January 2006 and the declaration of the District Court redundant. The application then turned on whether section 8A(a)(ii)(II) is satisfied on the facts, and whether the submitted Form 20 was capable of execution on this alternate basis. For the reasons I have given, I have found in the negative on both issues.
(Page 9)
Order
The application is dismissed.
I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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