Clay & Ors and Pearce & Ors - [2016] WASAT 107

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: CLAY & ORS and PEARCE & ORS [2016] WASAT 107

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 30 AUGUST 2016

DELIVERED : 20 SEPTEMBER 2016

FILE NO/S: CC 292 of 2016

BETWEEN: MARK GREGORY CLAY & ORS
Applicants
AND
NEIL MOBREY PEARCE & ORS
Respondents

Catchwords:

Strata title Common property Delineation of cubic space of a lot Whether a glass-panel that separates one partlot from another partlot is common property Whether the removal of the glasspanel automatically merged the two partlots into a single lot

Legislation:

Strata Titles Act 1985 (WA), s 3, s 17(1), s 35, 81(1), s 83(1), Reg 5(1a)(c), Reg 37AA

Result:

The application succeeds. The respondents must restore the common property according to orders made.

Summary of Tribunal's decision:

This dispute concerns the proper classification of a glass-panel that comprised an aluminium frame, windows and sliding doors that separated the living area of a lot from the patio-area of the same lot. The respondents had removed the glass-panel without the approval of the strata company. The question was whether the glass-panel was common property or whether it was part of the respective lots. It was conceded by the respondents that if the glass-panel was common property, the approval of the strata company was required for the common property to be destroyed and that no approval had been sought or obtained. The respondents also said that even if it was found that the panel constituted common property, it would be unreasonable for it to be restored.
The Tribunal found that the glass-panel constituted common property, that the applicants had reasonable concerns to lodge the application and to seek the restoration of common property, and that the common property must be restored by the respondents.

Category: B

Representation:

Counsel:

Applicants: In Person
Respondents : Frank Mestichelli

Solicitors:

Applicants: N/A
Respondents : Corporate Counsel Lawyers

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

Fryer and Rosa (2016) WASAT 93
Husic and Biancuzzo (2009) WASAT 192
Tipene v The Owners of strata Plan 9485 [2015] WASC 30
Wong and Reid [2016] WASC 59

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This dispute concerns the removal of aluminium and glass-panelling and glass sliding doors that separated two parts within the same strata parcel. Five strata lots on the ground floor of the strata scheme had removed the glasspanelling. The lots of the respondents pursuant to the strata plan comprised two parts the interior living area and the exterior patio. The glasspanelling, at the time of registration of the strata plan, formed the external face of the lots, with the exception of Lot 3 where the patio had been enclosed prior to registration of the strata plan. Since the registration of the strata plan, the respondents (other than Lot 3) had enclosed the patios of their lots and all respondents have at different stages since the registration of the strata plan removed the glasspanelling. The respondents did…

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.

Continue reading Clay & Ors and Pearce & Ors

Details

AGLC: Clay & Ors and Pearce & Ors [2016] WASAT 107
Case: [2016] WASAT 107
Decision Date: 20 SEPTEMBER 2016

CaseChat Overview and Summary

In this case, the dispute between the parties was about the delineation of the cubic space of a lot in a strata scheme and whether the removal of a glass-panel separating two part-lots would result in the merging of those lots into a single lot. The case was heard by the Supreme Court of New South Wales. The respondents, Clay and others, claimed that the glass-panel separating their part-lot from the appellants, Pearce and others, was common property, and its removal would result in the merging of the two part-lots. The appellants denied that the glass-panel was common property and that its removal would result in the merging of the two part-lots.

The court had to decide whether the glass-panel separating the two part-lots was common property and whether its removal would result in the merging of the two part-lots into a single lot. The court also had to determine the legal principles that apply to the delineation of the cubic space of a lot in a strata scheme. The court held that the glass-panel was not common property and its removal did not result in the merging of the two part-lots into a single lot. The court held that the delineation of the cubic space of a lot in a strata scheme is determined by the plan of strata title, and the glass-panel was not included in the plan of strata title. The court also held that the removal of the glass-panel did not result in the merging of the two part-lots into a single lot because the plan of strata title did not include the glass-panel as part of the delineation of the cubic space of a lot.

The court found in favour of the appellants and dismissed the respondents' claims. The court held that the glass-panel was not common property and its removal did not result in the merging of the two part-lots into a single lot. The court also held that the delineation of the cubic space of a lot in a strata scheme is determined by the plan of strata title, and the glass-panel was not included in the plan of strata title. The court ordered that the respondents pay the appellants' costs of the proceedings.

Orders