Clay v Torre - [2018] WASC 262

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CLAY -v- TORRE [2018] WASC 262
CORAM:   MASTER SANDERSON
HEARD:   23 JULY 2018
DELIVERED:   28 AUGUST 2018
FILE NO/S:   CIV 1301 of 2017
BETWEEN:   MARK GREGORY CLAY
Plaintiff
AND
ANTHONY NATALE TORRE
CARL NATALE TORRE
SILVESTRA MESTICHELLI
First Defendants
THE OWNERS OF CARINYA COURT ROCKINGHAM STRATA PLAN 25819
Second Defendant
THE REGISTRAR OF TITLES
Third Defendant

FILE NO/S: CIV 1514 of 2018
BETWEEN: MARK GREGORY CLAY
Plaintiff
AND
NEAL MOBREY PEARCE
LESLEY PEARCE
First Defendants
THE OWNERS OF CARINYA COURT ROCKINGHAM STRATA PLAN 25819
Second Defendant
THE REGISTRAR OF TITLES
Third Defendant

Catchwords:

Caveat lodged in relation to common property - Turns on own facts

Legislation:

Strata Titles Act 1985 (WA)
Transfer of Land Act 1893 (WA)

Result:

Order extending operation of caveats be discharged

Category: B

Representation:

CIV 1301 of 2017

Counsel:

Plaintiff	:	In person
First Defendants	:	Mr A J Aristei
Second Defendant	:	Mr M A Atkinson
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	In person
First Defendants	:	Carlo Primerano & Associates
Second Defendant	:	Atkinson Legal
Third Defendant	:	No appearance

CIV 1514 of 2018

Counsel:

Plaintiff	:	In person
First Defendants	:	In person
Second Defendant	:	Mr M A Atkinson
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	In person
First Defendants	:	In person
Second Defendant	:	Atkinson Legal
Third Defendant	:	No appearance

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

Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179
Radford v Bellevue Apartments Pty Ltd [2008] WASC 291

MASTER SANDERSON:

These two actions concern the extensions of caveats over a strata titled development in Rockingham. Although the actions are separate and distinct, they involve essentially the same two questions. First, does the plaintiff have a caveatable interest and if he does, is the caveat in its present form proper? It is convenient to begin by setting out the details of each of the caveats.
In CIV 1301 of 2017, the estate or interest claimed as set out in the caveat is as follows:
An estate and interest in:
(a)the common property wall drawn on strata plan 25819 between the two cubic spaces comprising Lot 3 on strata plan 25819; and
(b)the Registered Proprietors' obligation to reinstate the north facing section of that common property wall which the Registered Proprietor removed.
The only difference between that claimed estate or interest in CIV 1514 of 2018 is a reference to 'Lot 2'. Otherwise the wording is exactly the same.
In both caveats the interest of the caveator is said to arise by virtue of:
The provisions of the Strata Titles Act No 33 of 1985 as amended including sections 33 and section 35(1)(b); the share in the common property conferred by Certificate of Title volume 2230 folio 567; Strata Plan 25819 and the facts disclosed in the statutory declaration of Mark Gregory Clay lodged herewith.
Turning then to the statutory declaration which accompanied the caveat, it reads relevantly as follows:
(3)I have been an owner of lot 18 on Strata Plan 25819 since the Strata Plan was registered.
(4)I have been a member of the Strata Council of the Strata Company since December 2006 and the current Chairman and Treasurer of the Strata Council.
(5)By section 33 of the Strata Titles Act, the Strata Company is entitled to bring proceedings on behalf of the owners jointly and by section 35(1)(b) has a duty to control and manage the common property for the benefit of all owners.
(6)The Registered Proprietor of the Lot has removed the north facing glass and aluminium portion of the Common Property Wall drawn on strata plan 25819 between the two cubic spaces comprising the Lot (the section of Common Property Wall).
(7)The removal of the section of Common Property Wall occurred after 2 February 2008.
(8) The Registered Proprietor of the Lot has not sought or obtained approval from the Strata Company for the removal of the section of Common Property Wall.
(9)The Registered Proprietor of the Lot has not reinstated the section of Common Property Wall.
(10)The Caveator requires that the Registered Proprietor reinstate the second of Common Property Wall in glass and aluminium construction with all necessary building approvals before any Transfer of the Lots registered.
(11)In the premises the Caveator claims an interest in the property in:
(a)the Common Property Wall drawn on Strata Plan 25819 between the two cubic spaces comprising Lot 3 on strata plan 25819; and
(b)the Registered Proprietors' obligation to reinstate the north facing section of that Common Property Wall which the Registered Proprietor removed.
In CIV 1514 of 2018 in par 7 of the statutory declaration the date when it was said the wall was removed was after 27 June 2005.
In February 2016, the plaintiff along with a number of others took action against the first defendants in each of these two actions in the State Administrative Tribunal. The tribunal delivered its decision on 20 September 2016.[1] Relevantly the orders made were as follows:
(1)The application succeeds since it has found that the aluminium and glass‑panelling and sliding doors (glass‑panelling) the subject of this proceeding, comprised common property and such common property had been removed by the respondents without the approval of the Strata Company.
(2)The respondents must, at their cost by not later than 31 March 2017, restore the glass‑panelling to its original location as marked by the solid, dark line on the strata plan that separates the living area from the patio of the respective lots.
(3)The glass‑panelling to be installed shall as far as is reasonable and practical shall be consistent with the glass‑panelling that had been removed albeit that account may be taken that the glass panelling would by necessity comprise temporary material and design.
(4)These orders shall continue to have force and effect beyond the expiry of two years that next succeeds the making of these orders.
[1] [2016] WASAT 107.
In his written submissions, counsel for the second defendant highlighted what he said were four 'formal defects' in the caveat. First, he pointed to the fact that the caveat describes the land as lot 2 (or lot 3) on strata plan 25819. The estate or interest claimed is an estate and interest in the common property wall on the strata plan between two cubic spaces comprising lot 2 on the strata plan. It follows then the land the subject of the claimed estate or interest is the common property wall and the caveat is over the wrong land. If the land the subject of the claimed estate or interest is lot 2, the reference to the common property wall is meaningless.
Second, it is said that what has been lodged is an absolute caveat and this is not a situation where an absolute caveat is warranted. Reference was made to the Court of Appeal decision in Brogue Tableau Pty Ltd v Binningup Nominees Pty Ltd [2007] WASCA 179.
Third, it was submitted the caveat did not specify the estate or interest claimed. Rather it merely asserted an 'estate or interest in the common property wall …'.
Finally it was said that the caveat asserts a claim by two caveators (the Strata Company and the plaintiff) when the legal position of the two caveators is not the same. Interestingly enough, when the second defendant looked at removing the caveat administratively, it was advised by Landgate there was no mechanism for one party to remove a caveat when it had been lodged on behalf of both parties. So the second defendant had no choice but to participate in the hearing of this matter and oppose any extension of the caveat.
In my view, all four of the second defendant's submissions are made out. A party has a caveatable interest if it has an interest in respect of which equity will give specific relief against the land itself: see Radford v Bellevue Apartments Pty Ltd [2008] WASC 291. The common property in any strata development is not the subject of a separate certificate of title. The respective shares of the proprietors in a common property are recorded on the separate titles to the lots on the strata plan: see Strata Titles Act 1985 (WA) s 17. A proprietor of one lot does not have an interest in the share of the common property of another proprietor. It may well be the Strata Company has a right to ensure a registered proprietor reinstates common property when changes have been made to the common property without the necessary approvals. But it is difficult to see how that right gives rise to a caveatable interest. Any order for specific performance would be directed to the owner and require action in relation to the common property. No relief would be directed at the property itself.
The fact that orders were made in the State Administrative Tribunal does not assist the plaintiff's position. The tribunal does not exercise equitable jurisdiction. The orders were aimed at the registered proprietors of certain lots. Accordingly, the decision of the tribunal could not in and of itself give rise to a caveatable interest.
It was submitted on behalf of the second defendant that the way in which the caveat was framed conflated the position of the plaintiff and the second defendant. Counsel maintained that their interests were separate and distinct. Clearly that is correct. In Radford, Beech J was not persuaded the right to enforce the by‑laws is an incident of the tenancy in common of the common property. The Strata Company is now under the control of an administrator with plenary powers. The administrator does not wish to maintain the caveat. He takes the view there is no caveatable interest. That being so (and whether the administrator is correct or not) there is no basis upon which a joint caveat such as this can be maintained. Furthermore, the administrator is concerned that if the caveat were maintained the second defendant could be liable for damages under s 140 of the Transfer of Land Act 1893 (WA).
In all the circumstances I am not satisfied the plaintiff has a caveatable interest in the common property. Furthermore, the caveat itself is defective and for that reason alone ought be removed. The second defendant should not be exposed to the risk of a claim for damages as an unwilling party to a caveat which is inappropriately lodged.
In both these matters orders were made by the court extending the operation of the caveats until further order. On publication of these reasons, that order will be discharged and if necessary I will order the caveats be removed by the registrar.
The parties should have the chance to consider the form of orders and to consider the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
ASSOCIATE TO MASTER SANDERSON
28 AUGUST 2018