Clough and Owners Of Bengara Flats - Strata Plan 5500
[2005] WASAT 286
•2 NOVEMBER 2005
CLOUGH and OWNERS OF BENGARA FLATS - STRATA PLAN 5500 [2005] WASAT 286
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 286 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:2284/2005 | DECIDED ON THE PAPERS | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 2/11/05 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | EDWARD CLOUGH OWNERS OF BENGARA FLATS - STRATA PLAN 5500 |
Catchwords: | Application to make available for inspection records referred to under s 43(1)(b) of the Strata Titles Act 1985 (WA) Records subsequent to 2002 provided Claim for access to archived material prior to 2002 |
Legislation: | Strata Titles Act 1985 (WA), s 35, s 35(1)(h), s 43, s 43(1), s 43(1)(b), s 43(5), s 83(1), s 90, s 90(a), s 90(b) Strata Titles General Regulations 1996, r 25 |
Case References: | Nil Nil |
Orders | On the application heard before Senior Member Clive Raymond on 2 November 2005, it is ordered that:,1. On or before 30 November 2005:,2. (a) the respondent, at its cost, do make available to the applicant for inspection by him all records of the type described in s 43(1)(b) of the Strata Titles Act 1985 (WA) relating to the period from 1998 to 2002 located at Compustore Belmont, or elsewhere;,(b) the respondent do provide the applicant with a copy of any such documents requested by the applicant in writing, provided that, except for one copy of the minutes of general meetings, the applicant shall pay to the respondent a copying fee of $20 for the first five pages and $0.50 for each subsequent page provided to the applicant, together with general sales tax thereon if payable by the respondent in respect of the provision of the service for which the fee is payable.,3. On or before 7 December 2005, the respondent, by its secretary, or other proper officer, do swear an affidavit to be filed with the Tribunal and served on the respondent, deposing to:,4. (a) confirmation that the applicant has been provided with inspection of all documents in relation to which the applicant requested inspection, and if not, disclosing the documents not made available, and explaining fully the reason therefor;,(b) compliance with order 1(a) above, or otherwise explaining fully the extent to which the respondent has not been available to comply therewith and the reasons for such failure.,5. In the event that the affidavit referred to in 2 above discloses that there are additional documents which the applicant requested be made available to him for inspection, but which were not made available, the respondent shall provide the applicant with inspection of such documents on or before 14 December 2005 and shall be entitled to a copying fee of $0.50 per page plus general sales tax if payable by the respondent for the provision of such copying service. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : CLOUGH and OWNERS OF BENGARA FLATS - STRATA PLAN 5500 [2005] WASAT 286 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DECIDED ON THE PAPERS DELIVERED : 2 NOVEMBER 2005 FILE NO/S : CC 2284 of 2005 BETWEEN : EDWARD CLOUGH
- Applicant
AND
OWNERS OF BENGARA FLATS - STRATA PLAN 5500
Respondent
Catchwords:
Application to make available for inspection records referred to under s 43(1)(b) of the Strata Titles Act 1985 (WA) Records subsequent to 2002 provided Claim for access to archived material prior to 2002
Legislation:
Strata Titles Act 1985 (WA), s 35, s 35(1)(h), s 43, s 43(1), s 43(1)(b), s 43(5), s 83(1), s 90, s 90(a), s 90(b)
Strata Titles General Regulations 1996, r 25
(Page 2)
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 In this matter, the relief sought was for the grant of an order requiring the respondent to make available for inspection by the applicant the records referred to in s 43(1)(b) of the Strata Titles Act 1985 (WA) (the Act).
2 Although the application was initially resisted, the respondent agreed to allow the applicant inspection of the relevant records. The records which could be made available for inspection were identified by the respondent. The applicant was subsequently advised that the archived records which covered the period prior to 2000 previously said to be available did not exist. In circumstances in which the respondent had expressly acknowledged the existence of such records and had stipulated a cost to be charged to withdraw the boxes from the archived storage plus travelling time and fees, the Tribunal concluded that the applicant was entitled to an order as sought relating to the archived documents and further, that the respondent should be ordered, by its secretary or other proper officer, to provide an affidavit deposing to compliance with such order or otherwise explaining fully the extent of any noncompliance and the reasons for the failure to comply.
3 Further, as the charges sought to be recovered by the respondent were in excess of those prescribed under the Act, the Tribunal ordered that the records be made available for inspection at the respondent's cost, but that any copies requested in writing by the applicant, be provided at the prescribed copying fee.
The application
4 The applicant is the registered proprietor of Lot 4 on strata plan 5500.
5 On 6 April 2005, the applicant commenced proceedings citing the strata manager appointed by the owners of Bengara Flats strata plan 5500 and the secretary/treasurer as the respondents. The order sought was not clearly stated, being expressed simply as "under the provisions of section 83(1) settlement of dispute or rectification of complaint". The grounds stated outlined alleged criticisms of the way in which the secretary/treasurer of the strata company had dealt with the applicant and that she permitted "the appointed agent to conduct the business" of the council.
(Page 4)
6 The correspondence provided with the application reflected an obvious frustration on the part of the strata manager in dealing with numerous queries raised by the applicant.
7 Both the strata manager and the secretary/treasurer filed response statements asserting that they had complied with the requirements of the Act and in particular that the strata manager had carried out his duties on behalf of the secretary/treasurer and in accordance with the council's directions.
8 The Tribunal convened a directions hearing on 27 May 2005. Mr David Airey appeared on behalf of the strata manager. Mr Airey indicated that the strata company had no objection to the applicant inspecting its records. Consequently, the matter was adjourned to a further directions hearing on 23 June 2005 to allow the applicant an opportunity to carry out the inspection. The applicant also acknowledged that it was not appropriate to cite the strata manager, and that claim was withdrawn.
9 It is noted that, from the outset, all notices issued by the Tribunal, and subsequent orders, reflected the strata company as a respondent. It is apparent the application was processed in this way based on an interpretation that the citation of the secretary/treasurer was an intention on the part of the applicant to cite the strata company as a respondent. On 23 June 2005, this situation was regularised by the Tribunal ordering that the strata company be expressly added as a respondent. The Tribunal was subsequently informed that Ms Ellis had resigned as an office bearer. The Tribunal considers it is appropriate in the circumstances that the matter be determined consistent with the way in which the proceedings have been conducted with the strata company being the only named respondent against which relief is sought.
10 Notwithstanding Mr Airey's above advice, the Tribunal was informed at the directions hearing on 23 June 2005 that the proposed inspection had not taken place. The correspondence provided by the parties shows that there had been some misunderstanding concerning the direction made on 27 May 2005.
11 By letter of 14 June 2005, the strata manager wrote to the Tribunal indicating that he had been instructed to advise, relevantly, that the direction that the applicant be provided an opportunity to inspect the records of the strata company required clarification as it was not clear which records the applicant "is entitled to or wishes to inspect. No section
(Page 5)
- of the Strata Titles Act was mentioned and given the history of this matter with the applicant, we must know what it is he seeks." It is apparent that the respondent, therefore, took a different view to that communicated by Mr Airey at the directions hearing on 27 May. The order queried by the respondent was not made by way of a determination of any rights whatsoever, but as a result of Mr Airey's indication that the respondent was willing to allow the inspection.
12 This misunderstanding was ventilated at the directions hearing on 23 June 2005. It was apparent that the respondent still had no objection in principle to an inspection of its records, but it did require to know what documents the applicant wished to inspect and the basis upon which the applicant claimed the right to do so.
13 As a result, directions were issued requiring the applicant to file and serve an amended application for relief under s 90 of the Act. Although no direction was made, it was understood the parties would liaise with each other with a view to the applicant identifying the documents he wished to inspect, and if the respondent was then agreeable, to enable the inspection to take place. That understanding is reflected in correspondence subsequently filed with the Tribunal.
14 An amended application was filed in accordance with the directions, although it left blank the name of the respondent. Consistent with the way in which the proceedings were conducted as outlined above, it reflected that there was no other respondent. Under the section requiring that the order sought be outlined, the applicant now referred to "in terms of section 90 of the Strata Titles Act 1985 under s (a) and s (b) make available all records to the strata company as listed in the attached supporting documents and particularly the submission of records of the strata company as held by its agent, Airey and Associates, and elsewhere as indicated by that company's advice (facsimile 24 June 2005) and in accordance with the provisions of s 43 of the Act (p 118) and s 35 of the above Act".
15 The respondent filed a response to the amended application raising that it had not been correctly filled out, was incomplete and not signed, that the copy provided to it was incomplete, and that the application made no sense as to what records and documents the applicant wished to view. Further, it was stated that the applicant had been provided with a list of all the records held by the strata manager, yet had not listed those that he wished to inspect. It was asserted that the statutory basis referred to in the application was not correct.
(Page 6)
16 The application also raised that the respondent considered that the applicant was wilfully and deliberately seeking to waste the time of the strata manager and that caused additional cost to the strata company and other proprietors; that the proprietors of all lots, other than the applicant, fully supported the strata manager and endorsed the actions taken to date, and that the respondent sought an order to restrain the applicant from further intimidating other proprietors and representatives in order to seek to impose his will on these persons.
17 Somewhat ironically in view of the criticisms made, the response statement was not signed.
18 Notwithstanding the formal position taken by the respondent above, at the directions hearing on 4 August 2005, Mr Airey again indicated a willingness on the part of the respondent to allow the applicant to inspect its records provided the records sought to be inspected were adequately identified. Consequently, directions were issued requiring the applicant to provide the respondent with a written list identifying the documents he wished to inspect, and again, that the respondent provide the applicant with a reasonable opportunity to inspect such documents. The matter was adjourned to a further directions hearing on 8 September 2005, but in the expectation that the inspection would be allowed and that the matter would therefore be resolved, it was directed that the hearing be vacated if the applicant notified the Tribunal in writing that he sought to withdraw the application.
19 No notice seeking to withdraw the application was received by the Tribunal and only the applicant appeared at the directions hearing on 8 September 2005. The applicant informed the Tribunal that he had been provided with an opportunity to inspect the records of the respondent's strata company. There were many records that he had expected to be able to peruse but which he was told did not exist. He stated that a minute book recorded meetings and resolutions from the first Annual General Meeting on 18 March 1978 to 12 March 1997 but that there were no subsequent minutes or resolutions provided to him. It is not necessary to detail these examples for reasons stated below.
20 However, of particular concern to the applicant, was that he had been informed that there were archived records relating to the period prior to 2002 and then subsequently he was advised that there were no such records. The applicant provided a copy of a facsimile from the strata manager dated 15 August 2005 addressed to him which identified five
(Page 7)
- categories of records held or maintained by the strata manager. The fifth category was expressed as follows:
"5. Archived material: this aged not current material is located at Compustore Belmont which includes all records prior to 2002 such as minutes, accounts, correspondence, etc. The cost to withdraw the boxes is $10 per box plus travelling time and fees."
Considerations
22 Section 90 of the Act empowers the Tribunal to make an order, relevantly, that a strata company, supply or make available information, records, or documents to an applicant where the Tribunal considers that the strata company has wrongfully withheld information or failed to make available for inspection such record or document that under the Act the applicant is entitled to inspect.
23 Section 43 provides that upon application made in writing to a strata company, relevantly, by a proprietor and on payment of the prescribed fee (if any) the strata company shall make available for inspection by the applicant or its agent, records as specified in subsection 43(1).
24 The applicant, as a proprietor of a lot in the scheme, is entitled to inspection of records in accordance with s 43 of the Act. Under s 90 of the Act, the Tribunal must find that there has been a wrongful failure to make the records available for inspection.
25 It is apparent from the various responses filed during the conduct of the matter that the respondent contended that it had complied with its statutory obligations. The last response, filed expressly on behalf of the respondent on 28 July 2005, being in response to the amended application, refers to the strata company resolving at a meeting of members to advise the Tribunal that the applicant is wilfully and deliberately seeking to waste the time of the strata manager and to cause additional cost to the strata company and other proprietors. Although this literally records only that a resolution was passed, the Tribunal takes this as an allegation that
(Page 8)
- the applicant is acting out of an ulterior purpose and that there is no genuine need for inspection of the records.
26 There are no particulars provided to support the conclusion stated, and in any event, the course adopted at the directions hearing and thereafter in allowing the applicant to inspect the documents, is inconsistent with the allegation. It may well be that the respondent was motivated to adopt a pragmatic approach on the basis that this was simply an easier course to adopt than to proceed to oppose the applicant's right to inspection. But, whatever the motive for adopting the course, the matter has proceeded on that basis. That is, at least, a relevant factor to take into account in determining, as the Tribunal must, whether the respondent has wrongfully failed to make records available for inspection.
27 It is apparent from the correspondence that the applicant is dissatisfied with the way in which the respondent has discharged its obligations. The applicant has over a period of time raised a variety of issues. In the Tribunal's view, without some additional evidence, there is no proper basis upon which to infer an ulterior motive to the applicant.
28 The issue then arises whether, in view of the respondent's willingness to allow the inspection which has occurred, it can be said, in those circumstances, that the respondent has wrongfully failed to make available documents for inspection. Ordinarily, the provision of an opportunity to inspect would undercut the basis of an application under s 90 of the Act. In this case, the applicant says that there were documents which should have been available but were not, and that he was told that there were archived documents which he could inspect, only to be later told that there were not.
29 In relation to the first category of documents not available for inspection, inspection cannot be given of documents if they do not exist. The fact that they do not exist may be a basis upon which to challenge the competency of the members of council of the strata company and, in an appropriate case, a breach of duty of the strata company may be a basis upon which to apply for an administrator to be appointed.
30 It is of concern to the Tribunal that there appears, according to the applicant, to be no current record of minutes of meetings and resolutions passed thereat. It is difficult to believe that is the case. It is noted that, in the response statement filed on 3 May 2005 by the then strata manager as a respondent, a copy of a minute of a meeting dated 27 May 2003 was attached.
(Page 9)
31 The Tribunal is unable to make a finding as to whether there do exist documents which were not provided to the applicant for inspection. Although the inspection was directed by the Tribunal, it was only directed because of the respondent's willingness to allow the applicant to inspect. Because there was then no determination on the merits of the application and there was no issue as to the existence of appropriate records, no attempt was made to frame the orders made in a way which would have ensured an appropriate control, and if need be, commitment on oath to the existence or otherwise of the records concerned. In the circumstances, the Tribunal will issue an order requiring the respondent, through its secretary or other proper officer, to swear an affidavit confirming that the applicant had made available to him all of the documents which he requested be made available for inspection, and if not, describing as specifically as possible those documents which were not provided and the reasons for such documents not being provided. An order will be made for such further documents to be made available to the applicant for inspection.
32 It is then necessary to consider the records prior to 2002 which had apparently been kept in archives. Regulation 25 of the Strata Titles General Regulations 1996 (Regulations) describes that the period under s 35 of the Act for which the records stated in s 35(1)(h) must be retained, is a period of seven years. Those records include particular forms of notices and orders, minutes, books of account, statements of account, copies of correspondence, notices of meetings of the strata company and its council, proxies, voting papers and records of unanimous and special resolutions.
33 The applicant was advised in writing by the facsimile dated 15 April 2005, to which reference has been referred to above, that records prior to 2002 existed and were archived at the Compustore Belmont. For the same reasons as expressed above in relation to the documents which the applicant expected to be able to inspect but were told did not exist, it is appropriate that a specific order be formulated. In this case, on the evidence before the Tribunal, there is reason to believe that the archived records do exist. Accordingly, the order will require that inspection be provided of those records and that an affidavit be furnished deposing to compliance with the order, or otherwise, explaining fully the extent to which the respondent was unable to comply and the reasons therefor.
34 The applicant is entitled under s 43(5) of the Act to take extracts from, or make a copy of, the documents made available for inspection. The respondent is entitled to require the applicant to pay the prescribed fee for the provision of such copies. The fee prescribed under item 4 of
(Page 10)
- Sch 1 to the Regulations is $20 for the first five pages and $0.50 for each subsequent page plus, under item 5, general sales tax if the respondent is required to remit general sales tax for the provision of the service for which the fee is payable.
Orders
35 For the above reasons, the Tribunal orders as follows:
1. On or before 30 November 2005:
(a) the respondent, at its cost, do make available to the applicant for inspection by him all records of the type described in s 43(1)(b) of the Strata Titles Act 1985 (WA) relating to the period from 1998 to 2002 located at Compustore Belmont, or elsewhere;
(b) the respondent do provide the applicant with a copy of any such documents requested by the applicant in writing, provided that, except for one copy of the minutes of general meetings, the applicant shall pay to the respondent a copying fee of $20 for the first five pages and $0.50 for each subsequent page provided to the applicant, together with general sales tax thereon if payable by the respondent in respect of the provision of the service for which the fee is payable.
2. On or before 7 December 2005, the respondent, by its secretary, or other proper officer, do swear an affidavit to be filed with the Tribunal and served on the respondent, deposing to:
(a) confirmation that the applicant has been provided with inspection of all documents in relation to which the applicant requested inspection, and if not, disclosing the documents not made available, and explaining fully the reason therefor;
(b) compliance with order 1(a) above, or otherwise explaining fully the extent to which the respondent has not been available to comply therewith and the reasons for such failure.
(Page 11)
- 3. In the event that the affidavit referred to in 2 above discloses that there are additional documents which the applicant requested be made available to him for inspection, but which were not made available, the respondent shall provide the applicant with inspection of such documents on or before 14 December 2005 and shall be entitled to a copying fee of $0.50 per page plus general sales tax if payable by the respondent for the provision of such copying service.
I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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