COBILIS and THE OWNERS OF CROSSWAYS SHOPPING CENTRE, STRATA PLAN 24889 - [2009] WASAT 179

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: COBILIS and THE OWNERS OF CROSSWAYS SHOPPING CENTRE, STRATA PLAN 24889 [2009] WASAT 179

MEMBER: MR T CAREY (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 18 SEPTEMBER 2009

FILE NO/S: CC 613 of 2009

BETWEEN: NICKOLAOS COBILIS
STEVE COMPILIS
Applicants
AND
THE OWNERS OF CROSSWAYS SHOPPING CENTRE, STRATA PLAN 24889
DALEWING PTY LTD
Respondents

Catchwords:

Strata titles - Lot boundaries - Endorsement on sheet of strata plan - Whether applicable to lot not shown on that sheet - Whether lot area as disclosed by the strata plan determinative of the boundaries

Legislation:

Interpretation Act 1984 (WA), s 3(1), s 10(c)
Strata Titles Act 1985 (WA), s 3(1), s 3(2), s 3AB

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicants: Ms PA Martino
Respondents : Mr MA Atkinson

Solicitors:

Applicants: PA Martino
Respondents : Atkinson Legal

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants sought the removal of advertising signage from the external surfaces of two walls forming part of the boundary of their strata lot based on their assertion that the external faces formed part of the lot. An order in the nature of a declaration that the applicants are the owners of the external surfaces was also sought. The respondents opposed the application on the basis that the external surfaces were common property and not part of the lot.
The Tribunal considered the meaning of important defined terms under the Strata Titles Act 1985 (WA) and also the provisions in that Act dealing with vertical boundaries of lots. It was necessary to apply these terms and provisions having regard to the strata plan itself, one sheet of which contained an endorsement to the effect for which the applicants contended, although no such endorsement appeared on the sheet where the applicants' lot is identified.
The Tribunal found the applicants' submission that the endorsement applied to their lot to be contrary to the Strata Titles Act1985 (WA) and not supported by a provision of the Interpretation Act 1984 (WA) upon which they relied. It also rejected an argument based upon the actual area of the lot when compared with the floor area of the lot as disclosed in the strata plan. The application was consequently dismissed.

Introduction

Mr Nickolaos Cobilis and Mr Steve Compilis (owners) are the owners of a lot, Lot 32, in a 36-lot commercial strata development known as the Crossways Shopping Centre situated in Rokeby Road, Subiaco. Twenty‑six of the lots are located on the ground floor and the remaining 10 lots, including the owners' lot, are located on the first floor.
A dispute has arisen regarding the ownership of the external faces of the walls of the owners' lot fronting, respectively, Rokeby Road and Bagot Road. Those walls currently have signage affixed to them. The signage comprises one sign placed by the strata company (strata company) advertising the Crossways Shopping Centre and two signs affixed with the strata company's permission by Dalewing Pty Ltd (Dalewing), the lessee of Lot 1, advertising its supermarket business. The signs are on prominent parts of the building in close proximity to the intersection of the two roads.
The owners seek orders in terms that they are the owners of the external face of the wall of Lot 32 and that the strata company and Dalewing remove all advertising signage placed on those walls.

Issue

It is agreed that the sole issue raised by the application is whether the external walls of Lot 32 are common property or part of the owners' Lot 32.
The issue is to be determined primarily upon the application of the relevant provisions of the Strata Titles Act 1985 (WA) (ST Act) properly construed. Related to this, the owners rely upon a submission based upon the actual area of Lot 32. There are some further matters referred to by the parties with which it might also be necessary for me to deal.
I will commence with the primary statute-based point.

Application of relevant provisions of ST Act to the strata plan

The definition of 'lot' which appears in s 3(1) of the ST Act provides relevantly:
lot, in relation to a strata scheme, means one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan … to which that strata scheme relates, being in each case, but subject to section 3AB, cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2) …
I note that this definition makes reference to 'cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan', being the floor plan forming part of the strata plan. This is reflected in the definition of 'floor plan' as:
floor plan means a plan, consisting of one or more sheets, which -
(a)defines by lines … the base of each vertical boundary of every cubic space forming the whole of a proposed lot, or the whole of any part of a proposed lot, to which the plan relates;
(b)shows -
(i)the floor area of any such cubic space; and
(ii)where any such cubic space forms part only of a proposed lot, the aggregate of the floor areas of every cubic space that forms part of the proposed lot;
and
…
Despite the definition of 'lot' making reference only to the horizontal boundaries as being ascertained under s 3(2) - vertical boundaries are described simply in terms of defining the base of the cubic space which is as delineated on a sheet of a floor plan - that subsection does also deal with vertical boundaries of lots.
Section 3(2) provides relevantly:
(2)Except where section 3AB applies, the boundaries of any cubic space referred to in paragraph (a) of the definition of 'floor plan' in subsection (1) -
(a)except as provided in paragraph (b) -
(i)are in the case of a vertical boundary, where the base of any wall corresponds substantially with any line referred to in paragraph (a) of that definition - the inner surface of that wall; and
(ii)…
or
(b)are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building).
As the strata scheme in question is not a single tier strata scheme (the definition of which appears in s 3(1)), s 3AB does not apply to it.
By s 3(2)(a)(i), the general position governing delineation of the vertical boundary of a lot in the case of a wall corresponding to a baseline on a floor plan is that the inner surface of the wall is the boundary. However, this is subject to the exception referred to in s 3(2)(b) of 'such [other] boundaries as are described on a sheet of the floor plan relating to' the lot. This dichotomy within s 3(2) itself encapsulates the dispute between the parties. The owners submit that s 3(2)(b) applies by reason of a relevant description on a sheet of the floor plan to identify the boundaries as the external faces of the walls of Lot 32, whereas the strata company and Dalewing submit that no such description exists, with the result that the boundaries are the inner surfaces of those walls.
The strata plan consists in substance of two sheets. The first sheet (sheet 1), showing the ground floor lots, contains the endorsement:
External faces of walls are boundaries of lots comprising the building except for common walls where centre line of wall is boundary.
The second sheet of the floor plan is the amalgam of sheet Nos 2 and 2A (collectively, sheet 2) by reason of the subdivision of the original Lot 31 into six lots, including Lot 32. Sheet 2 shows the first floor lots. It contains no endorsement.
In my view, care needs to be taken in the exercise of statutory construction which this application necessitates in order that the scope of the exception to the general position - that the boundary of the lot is the inner surface of vertical walls - is appropriately confined. As s 3(2)(b) makes clear, the exception operates where a sheet of the floor plan relating to the lot in question so requires.
The question, then, is whether, as the owners submit, the endorsement to sheet 1 applies to the owners' lot, despite the fact that Lot 32 appears on sheet 2 and not sheet 1. On the face of it, one might think that the endorsement, appearing on sheet 1, cannot apply to Lot 32.
The owners rely upon s 10(c) of the Interpretation Act 1984 (WA) (Interpretation Act), which provides:
In any written law -
…
(c)words in the singular number include the plural …
By s 3(1) of the Interpretation Act, this provision will apply unless there is express provision to the contrary, or:
(b)… the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application; …
Even if, by reason of s 10(c) of the Interpretation Act, one should read s 3(2)(b) of the ST Act as (emphasis added):
… are such boundaries as are described on one or more sheets of the floor plan relating to that cubic space … -
I cannot see how this assists the owners. The description of the boundaries will apply only to the extent that they appear on a sheet of the floor plan relating to the lot in question.
The owners' submission on the point is somewhat more convoluted than this. It reads as follows:
The Respondent has focused on the definition of 'lot' in section 3(1) of the Act and the use of the words 'a sheet' in section 3(2)(b) of the Act. What therefore is the definition of 'lots' as it is the words [sic] 'lots' used in the endorsement of the ground floor sheet which is relevant. The applicant submits based on section 10(c) Interpretation Act 1984 that as the endorsement on the ground floor sheet states 'lots comprising the building' then the interpretation of the singular words in section 3(1) and section 3(2)(b) of the Act must extend to the plural.
Therefore based on the submission … above the endorsement relates to all the lots which comprise the building not only the lots on the ground floor of the building.
I have a number of difficulties with these submissions. First, accepting that the endorsement on sheet 1 refers to 'lots' rather than 'lot', this does not disturb from the requirement, in relation to the boundaries of any particular lot, for any boundaries contrary to the general position to be described on a sheet of the floor plan relating to the lot in question.
Second, I fail to understand how, based on s 10(c) of the Interpretation Act, the reference in the endorsement on sheet 1 to 'lots comprising the building' leads to the result that the endorsement relates to all lots comprising the building, whether or not they are ground floor lots. I cannot accept that s 10(c) warrants the application, word for word, of a statutory definition of a singular noun to the plural, which is, I think, the substance of what is being submitted ('the interpretation of the singular words in section 3(1) and section 3(2)(b) of the [ST] Act must extend to the plural'). To the extent that the result is nonsensical, or conflicts with another provision of the ST Act (in this case, s 3(2)(b)), it is not warranted on any view one takes of s 10(c), by reason of s 3(1)(b) of the Interpretation Act.
As the strata company has pointed out, the owners' contentions amount to an inaccurate pluralisation of the terms concerned. The correct plural definition of 'lot' would be in substance:
Lots are cubic spaces forming part of the parcel to which a strata scheme relates, being cubic spaces the bases of whose vertical boundaries are as delineated on sheets (not a sheet) of the floor plan.
Given a multi-level strata scheme, with the bases of different lots depicted on different levels, the floor plan for the scheme will consist of more than one sheet. To the extent that there is any endorsement of the type referred to in s 3(2)(b), it can apply only to those lots to which the sheet containing it relates. The endorsement is prevented, by the words of the subsection, from having the wider application for which the owners contend.

Statement of lot area in the strata plan

The owners submit that the area of Lot 32 as shown in the strata plan is 240 square metres, and that this is consistent with the evidence of the owners' architects. According to a letter from architects engaged by the owners, the area of the lot, measured to the external face of the walls, is 237 square metres, but this reduces to 227 square metres when the area measured to the internal faces of those walls is considered.
Although it is true that the definition of 'floor plan' provides that the plan shows the floor area of the cubic space in question, this provision cannot be read, in my view, in such a way as to 'wag the dog' of s 3(2). That is the provision dictating where the boundaries of Lot 32 lie. If, by the application of that provision, the floor area as shown in the strata plan for the lot is excessive, that is an inaccuracy which might be the subject of corrective action by the strata company.
The applicant's own position is equivocal regarding the determinative quality of the depiction of the floor area of a lot on a strata plan. Their architects' measurements to the external faces of the walls indicate an area measured less (albeit by a small margin) than the area as shown on the strata plan. There was no suggestion by them, however, that the boundaries should be drawn in such a way that the 'correct' area be accommodated.

Other matters raised and conclusion

A number of matters referred to in the written documents do not require a response, given my conclusion that the sole issue in the case is determined by the application of s 3(2) of the ST Act to the walls in question. Those matters include submissions by the strata company concerning prior conduct of the owners contrary to any claim to be the owners of the walls, the alleged commercial and logical sense of the strata company's position, the alleged impact that removal of the signs advertising Dalewing's business would have on Dalewing, and the owners' stated intention to negotiate with relevant parties to ensure continual display of signs.
The walls, including their external surfaces, are part of the common property. In those circumstances, the application must be dismissed.

Order

The Tribunal orders that:
The application is dismissed.

I certify that this and the preceding [33] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER