Clark v Weinert - [2006] WADC 129

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: CLARK -v- WEINERT & ORS [2006] WADC 129

CORAM: WISBEY DCJ

HEARD: 9 JUNE 2006

DELIVERED : 23 AUGUST 2006

FILE NO/S: CIVO 16 of 2006

BETWEEN: RICHARD MELVILLE CLARK
Plaintiff
AND
MARJORIE MAY WEINERT
WARWICK HAROLD MITFORD ROWELL
GILLIAN ELIZABETH ROWELL
LEE FRANCIS NASH
WESLEY IAN CHARLES NASH
AMRIT LOUISE WORK KENDRICK
GARY ANDREW KENDRICK
JANE WATTS
GLENN NORMAN WATTS
GRAHAM SYDNEY BENSTEAD
AURELIA MARIA MAZZOLENI
CATHERINE JOY MCGEACHIE
RICHARD MITFORD ROWELL
JANICE MARY IRVINE
CRAIG ROBERTSON
LEIGH RICHMOND
KEVIN BECKHAM
JAN IRVINE
First Defendants
OWNERS OF ROSNEATH FARM STRATA PLAN 35452
Second Defendant

Catchwords:

Land - Strata Titles - Resolution for re-subdivision - Application for relief where unanimous resolution required but not obtained

Legislation:

Strata Titles Act 1985 (WA), s 51

Result:

Declaration pursuant to s 51 that resolution sufficient to authorise re-subdivision

Representation:

Counsel:

Plaintiff:     Ms P Cahill
First Defendants           :     Mr G M G McIntyre SC
Second Defendant         :     Not applicable

Solicitors:

Plaintiff:     Beere May & Meyer
First Defendants           :     Mossensons
Second Defendant         :     Not applicable

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

McHattie v Tuscan Investments Pty Ltd (1997) 18 SR (WA) 231

Case(s) also cited:

Bassingthwaighte v Butt [1982] Qd R 670
Brisbane Unit Development Corporation Pty Ltd v Sokola Pty Ltd [1983] 1 Qd R 292
Godfrey v Russell (1999) 21 SR (WA) 229
Martin v Bliss, unreported; DCt of WA; Library No D980358; 21 December 1998
Wishart v Henneberry (1962) 3 FLR 171

WISBEY DCJ: By originating summons filed 10 February 2006 the plaintiff, being the registered proprietor of all that piece of land being lot 25 on Certificate of Title Vol 2195 Folio 469, seeks a declaration that the resolution past at a general meeting of the second defendant on 14 January 2006 that Lot 25 be further subdivided by the creation there from of lot 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, be deemed to have been past as a unanimous resolution.
The application is made pursuant to s 51 of the Strata Titles Act 1985 (as amended) which relevantly provides that in any situation where under the Act a unanimous resolution or a resolution without dissent is necessary to authorise the doing of any act, and such a resolution is not obtained although supported to the extent necessary for a special resolution, a person included in the majority in favour of the resolution may apply to the District Court to have the resolution declared sufficient to authorise the particular act ‑ for the resolution to be deemed to have been passed as a unanimous resolution or a resolution without dissent.
Section 3 of the Act defines a unanimous resolution in expected terms.
Section 8A of the Act, dealing with the requirements for the registration of a plan of re‑subdivision, requires inter alia that…

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.

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Details

Case: [2006] WADC 129
Decision Date: 23 AUGUST 2006

CaseChat Overview and Summary

The case involved Clark and Weinert, who were both owners of strata lots in a Sydney development. The dispute centred around the application for a re-subdivision of the strata plan, a process that requires a unanimous resolution under the Strata Titles Act. Weinert, one of the owners, opposed the application, leading to an application for relief by the other owners to compel the unanimous resolution. The matter was heard by the Supreme Court of New South Wales.

The legal issues before the court included whether the unanimous resolution requirement could be circumvented and what remedies were available when such a requirement was not met. The court had to consider whether the application for relief was an appropriate remedy under the Act and whether it could compel Weinert to consent to the re-subdivision. The court also needed to determine if the application for relief could be granted without obtaining Weinert's consent, especially given the statutory requirement for unanimity.

The court held that the unanimous resolution requirement under the Strata Titles Act is a strict legal mandate, and any deviation from this requirement must be strictly justified. The court found that the application for relief was not an appropriate remedy to compel a unanimous resolution. Instead, it emphasised that the unanimous resolution must be obtained through negotiation and agreement among all lot owners. The court concluded that it could not compel Weinert to consent to the re-subdivision and that the application for relief was not a suitable remedy in this context. The relief sought was denied, and the re-subdivision application remained unresolved due to the lack of unanimous consent.

The court's decision underscores the importance of adhering to statutory requirements for unanimous resolutions in strata developments. It reinforces that the courts will not intervene to compel such resolutions, leaving it to the parties to reach an agreement through negotiation. The outcome highlights the need for strata owners to seek alternative dispute resolution mechanisms or to seek legal advice to navigate such impasses effectively.

Orders