Clark and the Owners Of Rosneath Farm - Survey Strata Plan 35452 and ANOR

[2005] WASAT 329

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   CLARK and THE OWNERS OF ROSNEATH FARM - SURVEY STRATA PLAN 35452 AND ANOR [2005] WASAT 329

MEMBER:   MR T CAREY (MEMBER)

HEARD:   DETERMINED ON THE PAPERS

DELIVERED          :   12 DECEMBER 2005

FILE NO/S:   CC 3445 of 2005

BETWEEN:   RICHARD MELVILLE CLARK

Applicant

AND

THE OWNERS OF ROSNEATH FARM - SURVEY STRATA PLAN 35452 AND ANOR
Respondents

Catchwords:

Strata titles – Jurisdiction of Tribunal – Declarations sought that applicant entitled to voting rights by reason of contracts with purchasers of lots from him – Whether a dispute or complaint of type referred to in s 83(1) Strata Titles Act – Consequences for application for production of documents – Survey-strata plan 35452

Legislation:

Strata Titles Act1985 (WA), s 83(1)

State Administrative Tribunal Act 2004 (WA), s 34, s 35

Result:

Jurisdictional argument upheld

Category:    B

Representation:

Counsel:

Applicant:     Mr G Kelly

Respondents                 :     Mr G McIntyre SC

Solicitors:

Applicant:     Beere May & Meyer

Respondents                 :     Steven Forward

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicant has sought in his substantive application orders in the nature of declarations the effect of which would have been to confirm his ability to vote for and on behalf of purchasers from him of lots in a survey‑strata scheme in relation to further subdivisions of the scheme.  The applicant applied for interim orders for production of certain documents which related solely to the declaratory orders, and other documents.

2. The respondents affected by the declaratory orders contended that the Tribunal does not have jurisdiction to make them.  The Tribunal agreed, on the basis that the voting rights asserted by the applicant derived from private agreements between parties, and were not conferred or imposed by the Strata Titles Act1985 (WA) nor the strata company by‑laws, as required by the statutory provision upon which the applicant relied. The application for production of documents relevant to the declaratory orders therefore fell away. The application for production of other documents was postponed pending provision of the documents to the Tribunal

Substantive application

1. By his application filed on 21 October 2005, the applicant seeks a number of orders going to the management of survey‑strata plan 35452 (plan) by the first respondent, including appointment of an administrator.

2. Three of the orders sought are relevant for the purposes of this decision.  Those orders (proposed orders) are as follows:

   "10.That the Agreements to Facilitate Staged Development entered into between the Applicant and the proprietors of lots on the Strata Plan entitle the Applicant to vote for and on behalf of the proprietors in relation to any motion to approve a further subdivision of the super lot as it is constituted from time to time and the allocation of unit entitlement required by section 8A of the Act provided that the motion only gives effect to the plan of subdivision set out in annexure 'A' to this order and creates no more than 70 lots.

   11.That the Applicant be appointed the attorney for the Third Respondents and be entitled to vote for and on behalf of the Third Respondents in relation to any motion to approve a further subdivision of the super lot as it is constituted from time to time and the allocation of unit entitlement required by section 8A of the Act provided that the motion only gives effect to the plan of subdivision set out in annexure 'A' to this order and creates no more than 70 lots.

   12.That the Applicant be appointed the attorney of the Fourth Respondent and be entitled to vote for and on behalf of the Fourth Respondent in relation to any motion to approve a further subdivision of the super lot as it is constituted from time to time and the allocation of unit entitlement required by section 8A of the Act provided that the motion only gives effect to the plan of subdivision set out in annexure 'A' to this order and creates no more than 70 lots."

3. Some of the relevant factual circumstances are set out in my earlier decision in the Owners of Rosneath Farm – Strata Plan 35452 and Clark [2005] WASAT 14. Those circumstances are:

   (a)the relevant parcel is situated at McLachlan Road Dunsborough;

   (b)the applicant is the original proprietor of the parcel;

   (c)the plan was registered on 11 February 1999, initially comprising 16 lots including eight common property lots;

   (d)subsequent to two re‑subdivisions, there are (excluding the common property lots) 15 "ordinary lots" together with the "super lot", which the applicant has retained.

4. The proposed orders are predicated upon the validity of certain agreements entered into between the applicant and purchasers from him of lots under the scheme, in each case called "Agreement to Facilitate Stage Development" (AFSD).  The third and fourth respondents are two such purchasers.  Specifically, the applicant relies upon cl 3 of the AFSD, under which the purchasers agreed "to surrender their voting rights solely to do with subdivisions of 'future development' lots to" the applicant.  The "future development" lots are the lots to be created from the super lot as a result of future re‑subdivisions in accordance with a diagram attached to the AFSD.

Jurisdictional argument

1. The second, third and fourth respondents contend that the proposed orders are not ones that the Tribunal may make under the legislative provision upon which the applicant relies. That provision is s 83(1) of the Strata Titles Act1985 (WA) (ST Act), which is in the following terms:

   "(1)   The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme on any person entitled to make an application under this subsection or on the council or the chairman, secretary or treasurer of the strata company."

2. A reading of the written submissions of both sides has crystallised the following issues as being necessary to resolve in order to determine the jurisdictional issue:

   1.What is the power or function the exercise of which, or the failure to exercise which, has given rise to a dispute or complaint?

   2.Is the function or power conferred or imposed by the ST Act or the by‑laws?

   3.Does a dispute or complaint under s 83(1) ST Act exist?

Power or function

1. I accept the applicant's submission that the ability or capacity of a proprietor to vote at a general meeting of the strata company is an ability or capacity that falls within the meaning of the words power or function in s 83(1). On my reading of the respondents' submissions, they have not sought to argue to the contrary.

Power or function conferred or imposed by the ST Act or the by‑laws

1. As I read the applicant's submissions, they do not directly deal with this requirement.  Rather, they look at the effect of the proposed orders as not interfering with, nor taking the place of any contractual obligations that may exist between the applicant and the third and fourth respondents.  The applicant’s expressed object is to obtain a finding "as a matter of fact and law that by virtue of the facilitation agreements and the contracts of sale, the respondents have surrendered their voting rights to the applicant" (emphasis added).

2. In my view, the words I have emphasised in the passage just quoted identifies the problem which exists for the applicant in arguing that the Tribunal has jurisdiction to make the proposed orders.  It is true that a proprietor's right to vote in respect of his or her own lot is conferred or imposed by the ST Act or the by‑laws.  However, the applicant's capacity to exercise or perform the power or function in question derive, on the applicant’s case, from the agreements mentioned.  They are not, therefore, conferred or imposed by the ST Act or the by‑laws of the strata company.

3. On this basis, I agree with the second, third and fourth respondents' contention that the Tribunal does not have jurisdiction to make a declaration as to the right of the applicant to vote which may be accorded by the AFSD as sought in paragraph 10, nor to appoint the applicant as attorney for the third or fourth respondent to exercise their voting powers by reason of the AFSD.  Such a conclusion is, in my view, consistent with the overall objectives and purposes of the ST Act, which is a self‑contained code for the extensive range of issues which might arise in the context of strata and survey‑strata schemes, but which would not normally involve contractual issues such as those that would need to be determined if the applicant were permitted to pursue the proposed orders.

Dispute or complaint under s 83(1) ST Act

1. My finding in relation to the second issue discounts the existence of such a dispute or complaint.

Production of documents

1. By an application to the Tribunal made on 3 November 2005, the applicant sought orders for production of documents under s 34 and s 35 of the State Administrative Tribunal Act 2004 (WA). The documents were identified in a letter by the applicant's solicitors to solicitors acting for the second, third and fourth respondents, and production was sought from both the solicitors and the relevant respondent in each case. The documents were:

   1.A bound book entitled Rosneath Farm Contract of Sale documentation handwritten copy lot 23 dated 2 December 2002;

   2.A bound book containing Contract of Sale documentation in relation to lot 17, 1999 to 2000;

   3.Contract of Sale for lot 17 (with enclosed disclosure statement) 25 January 2000;

   4.Purchase of lot 17 in four equal shares as tenants in common, 28 September 1999, Rosneath/Benstead Agreement 1 dock, 28 September 1999;

   5.A bound book entitled Rosneath Farm Contract for Sale documentation with writing W & G Rowell, copy in relation to lot 23, undated.

   6.A bundle of documents (25) regarding Bakery Finance, 12/6/2002;

   7.A letter from Warwick Rowell to Richard Clark with wording "The Cost of Installing Electrical Connection".

2. The parties were in agreement that the relevance of items numbered 1 – 5 was limited to the proposed orders.  In light of my finding of the Tribunal's lack of jurisdiction to make those orders, any entitlement to production of the documents falls away.

3. As for the relevance of documents described in item 6 and item 7, the applicant referred to an order sought that the proposed administrator have a duty to either undertake or appoint a qualified person to undertake an audit of the finances of the strata company.  He submitted that the documents are directly relevant to his allegations that the council of owners improperly borrowed monies to assist in building a bakery and engaged in unauthorised expenditure.  The respondents sought to categorise the documents as ones that related to parties other than the strata company.

4. On 10 November 2005, I ordered that the respondents provide the Tribunal with copies of the documents identified in items 6 and 7 in a sealed envelope in order to determine their relevance.  This does not appear to have occurred and should now be attended to forthwith.  I will simply postpone my consideration of the application to produce those documents until such time as I have had the opportunity to inspect the documents.  Given that the substantive application is due for hearing on 16 December 2005, this consideration is likely to occur at or after the hearing.  The parties may wish to address me at the hearing as to how that part of the substantive application should be managed in the event that I determine that any of the documents is relevant.

Orders

1.The orders sought in the substantive application as orders 10, 11 and 12 are struck out for want of jurisdiction.

I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR T CAREY, MEMBER