| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : COCKER and THE OWNERS OF 178 COLLIER ROAD, EMBLETON STRATA PLAN 31300 [2013] WASAT 81 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : 22 MAY 2013 DELIVERED : 5 JUNE 2013 FILE NO/S : CC 297 of 2013 BETWEEN : JAMES RICHARD COCKER Applicant
AND
THE OWNERS OF 178 COLLIER ROAD, EMBLETON STRATA PLAN 31300
Respondent
Catchwords: Strata title Deemed approval of alteration to lot after time for consideration of application had expired Unreasonable refusal for lot to be altered Nature and extent of information to be provided to strata company in an application when approval to alter lot is sought Whether service on the chairperson of strata company is sufficient to comply with statutory requirements Whether there is an obligation on proprietor to convene general meeting
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Legislation: Interpretation Act 1984 (WA)
Strata Titles Act 1985 (WA), s 7, s 103F
Strata Titles General Regulations 1996 (WA), reg 34, reg 34(2), Sch 1 Bylaw 1(2)(a), Sch 2 Bylaw 1, Bylaw 2, Bylaw 3(b), Bylaw 4, Bylaw 6, Bylaw 9, Bylaw 12(b), Bylaw 13, Bylaw 14 Result: The application for an order pursuant to s 103F of the Strata Titles Act 1985 (WA) is dismissed since the Proposal dated 3 August 2007 by Mr Cocker to alter Lot 7 is deemed to have been approved by the strata company pursuant to s 7B(7) of the Strata Titles Act 1985 (WA)
Summary of Tribunal's decision: The applicant, Mr Cocker, brought the application to obtain clarity about two questions:
Mr Cocker sought an order, pursuant to s 103F of the Strata Titles Act 1985, to dispense with the approval required from the respondent pursuant to s 7(2) of the Strata Titles Act 1985. Mr Cocker held the view:
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given by the respondent pursuant to s 103F of the Strata Titles Act 1985. The respondent opposed the application on two grounds: The Tribunal found that: • the Proposal dated 3 August 2007 did, in essence, comply with the requirements of s 7B(1) of the Strata Titles Act 1985 and reg 34 of the Strata Titles General Regulations 1996; • the failure of the respondent to give notice of its decision to Mr Cocker within the time prescribed by s 7B(5) of the Strata Titles Act 1985 meant that the approval applied for is taken to have been given by the strata company pursuant to s 7B(7) of the Strata Titles Act 1985; and • the application pursuant to s 103F of the Strata Titles Act 1985 was dismissed since the issue is moot in light of the finding that approval of the Proposal dated 3 August 2007 was deemed to have been given pursuant to s 7B(7) of the Strata Titles Act 1985. The application for an order pursuant to s 103F of the Strata Titles Act 1985 was therefore dismissed on grounds that approval of the Proposal was deemed to have been given pursuant to s 7B(7) of the Strata Titles Act 1985.
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Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Self-represented
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Corser and The Owners of 5 Gairloch Street Applecross Strata Plan 18807 [2004] WASTR 53
Knapinski and The Owners of 178 Collier Road, Embleton Strata Plan 31300 [2012] WASAT 197
The Owners of 19 Hayes Avenue Yokine Strata Plan 24114 and White & Anor [2005] WASAT 70
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REASONS FOR DECISION OF THE TRIBUNAL:
Issues 1 Two issues arose in this proceeding, namely: Background 2 Mr Cocker bought a vacant lot at No 178 Collier Road, Embleton (Lot 7) in order to build a dwelling on it. The local authority (City of Bayswater) granted planning approval on 27 July 2007 for the development to proceed. In note 11 of the planning approval it is stated that the approval does not waive or remove obligations or requirements stipulated under the ST Act. At the time the City of Bayswater had approved the development, the proposed development had not yet been approved by the respondent. 3 Mr Cocker submitted the Proposal for development of Lot 7 in a Proposal dated 3 August 2007 to the respondent for approval. Mr Cocker noted in the Proposal that the City of Bayswater had approved the development. The Proposal was sent per registered mail to: The registered mail is dated 9 August 2007. It is not disputed by Ms Mathews or Ms Abreu that the Proposal was received by them around that time. Ms Stevenson is no longer a proprietor and was not called to give evidence. 4 It is confirmed by Ms Mathews and Ms Arbeu that the strata council did not convene a general meeting as required by s 7B(2) of the ST Act to consider the Proposal. (Page 6)
5 Mr Cocker proceeded after the lapsing of 77 days, as provided for in s 7B(5) ST Act, with the construction of the dwelling since he was of the view that pursuant to s 7B(7) of the ST Act the required approval is taken to have been given. 6 After several months of disputation between proprietors within the strata scheme involving the works on Lot 7 as well as works on other lots the subject of a previous proceeding (some of the issues were canvassed in Knapinski and The Owners of 178 Collier Road, Embleton Strata Plan 31300 [2012] WASAT 197) (Knapinski), a general meeting was convened to consider the Proposal as well as applications submitted by other proprietors for alteration of their respective lots. 7 The general meeting took place on 27 June 2008. At the time of this meeting, the construction of the dwelling on Lot 7 was well underway. Five proprietors voted against a resolution without dissent and as a result the respondent says the Proposal of Mr Cocker was rejected. The reasons recorded in the minutes of the meeting for the rejection of the Proposal were as follows: 8 Mr Cocker lodged an application with the Tribunal on 11 March 2013 in which he seeks clarification as to whether approval for the Proposal is deemed to have been given by the respondent. Mr Cocker says that as a result of the respondent failing to notify him - within 77 days from the day upon which the Proposal was lodged - about the outcome of the respondent's decision, that approval is deemed to have been given. Mr Cocker says if that is not the case, then the approval of the Proposal was unreasonably withheld at the general meeting on 27 June 2008. 9 As a result of the protracted disputation within the strata scheme about a wide range of issues, the Tribunal had previously encouraged the parties to meet so as to endeavour to resolve the disputes amicably. Although a general meeting was convened on 16 May 2012 in an attempt (Page 7)
to remove disputation about the legality of alterations that have been effected to various lots within the scheme, no agreement could be reached. 10 In this proceeding, the Tribunal invited all proprietors to make submissions and/or to give evidence at the hearing. The strata council did not make a submission since members of the council are in dispute. 11 Written submissions were received and oral evidence was given by Mr Cocker, Ms Mathews, Ms Abreu, Ms Knapinski and Ms Richardson (current strata manager). The Tribunal took all the written submissions and the oral evidence into consideration.
Statutory framework 12 Several sections of the Strata Titles Act 1985 (WA) (ST Act) and the Strata Titles General Regulations 1986 (WA) (ST Regulations) are of relevance to these proceedings; namely, s 7(2), s 7(4), s 7B, s 103F of the ST Act, and reg 34 of the ST Regulations. 13 Section 7(2) of the ST Act provides as follows: The proprietor of a lot shall not cause or permit - (a) any structure to be erected; or (b) any alteration of a structural kind to, or extension of, a structure, on his lot except - (c) with the prior approval of the proprietor of the other lot in the case of a strata scheme in which there are not more than 2 lots; and (d) in any other case with the prior approval, expressed by resolution without dissent, of the strata company. 14 Section 7(4) of the ST Act provides as follows: Where an application is made to a strata company in accordance with section 7B - (a) notice of the general meeting to which the application is to be submitted shall contain or be accompanied by a statement, in the prescribed form, of the effect of paragraphs (c) and (d); (b) the chairman of the general meeting shall before a vote is taken on the application read out the statement referred to in paragraph (a); (c) a proprietor may vote - (Page 8)
(i) against a resolution to approve the application; or (ii) in support of a resolution to refuse approval of the application, on any ground that is permitted by subsection (5), but not otherwise; and (d) a vote referred to in paragraph (c) is of no effect unless the person casting the vote discloses as a ground for his vote one or more of the grounds permitted by subsection (5). 15 Section 7B of the ST Act provides as follows: (1) A proprietor who wishes to obtain an approval of a Proposal that comes within section 7(2) or 7A(2) shall serve an application on the strata company or the other proprietor, as the case may require, and in the application shall set out details of the Proposal and such other information as may be prescribed. (2) Where an application is made to a strata company under subsection (1) the council of the company shall submit the application to a general meeting of the company convened for the purpose, or for purposes which include that purpose, within 35 days after the application is received (the allowed period). (3) If the council does not - (4) Despite subsection (2), a council may submit an application to a general meeting convened by the council after the allowed period if that meeting is held before a meeting is convened by Mr Cocker under subsection (3). (5) Notice in writing of the decision on an application shall be given to the applicant - (a) in the case of a two-lot scheme, by the other proprietor within 42 days after the service of the application on him; and (Page 9)
(b) in any other case, by the strata company within 77 days after service of the application on the company. (6) If an application made to a strata company or the other proprietor for approval under section 7 is not approved, a notice under subsection (5) shall show the ground or grounds - (7) If notice of a decision is not given to the applicant in accordance with subsection (5) and, where applicable, subsection (6) the approval applied for is to be taken to have been given. 16 Section 103F of the ST Act provides as follows: (1) A proprietor of a lot who has applied for but not obtained an approval under section 7B may apply to the State Administrative Tribunal for an order under this section. (2) An order under this section is an order declaring that the approval required under section 7 or 7A, as the case may be, is to be deemed to have been given by the proprietor or the strata company. (3) On the making of an application under subsection (1), the State Administrative Tribunal may make an order under this section if satisfied that the approval - (4) If - (Page 10)
(5) The State Administrative Tribunal cannot make an order on a conditional application unless a proprietor, voting in accordance with section 3AC(2), casts a vote against the application referred to in subsection (4)(a) nor until the expiration of 35 days after the meeting. 17 Regulation 34 of the ST Regulations provides as follows: (Page 11)
Contentions 18 The contentions of Mr Cocker can be summarised as follows: (Page 12)
• The Proposal complies with the requirements of s 7B(1) of the ST Act and reg 34 of the ST Regulations. • Prior to lodging the Proposal with the respondent, the City of Bayswater had approved the development. • The Proposal was properly served on the strata company. • The strata company failed to give notice to Mr Cocker of a decision as required pursuant to s 7B(5) of the ST Act and as a result the approval sought for the Proposal is taken to have been given according to s 7B(7) of the Act and the construction was lawful. • In the alternative, the refusal by the strata company to approve the Proposal at its meeting held on 27 June 2008 was unreasonable since the potential breach of by-laws referred to were either of a temporary nature during the construction process or did not occur at all. No concerns were raised during the construction process by any proprietor that by-laws were being breached. 19 The contentions of the respondent can be summarised as follows: • The Proposal was received by office bearers of the strata company, but it was not served on the strata manager. • Ms Mathews orally told Mr Cocker that the Proposal did not meet the statutory requirements since there was no statement as envisaged by reg 34(2)(f) of the ST Regulations about any contravention that may occur, be it temporary or permanent, to any of the by-laws. • The strata manager was requested to convene a general meeting to consider the Proposal but, for a reason that is not known to Ms Mathews, such meeting was not convened. • Mr Cocker should have convened a general meeting pursuant to s 7B(3) of the ST Act. • The general meeting that took place on 27 June 2008 properly considered the Proposal and failed to approve it with a resolution without dissent. The reasons given (Page 13)
Consideration 20 This application rests on two alternatives - the first is that approval of the Proposal is deemed to have been given by the respondent and, in the alternative, that the refusal by the general meeting held on 27 June 2008 to approve the Proposal was unreasonable, and that approval should be deemed by the Tribunal to have been given. 21 The Tribunal will deal with the questions separately.
Deemed approval pursuant to s 7B(7) of the ST Act 22 The statutory requirements for a proposal to be considered pursuant to s 7B of the ST Act can be summarised as follows (the detailed provisions are quoted above): 23 A proprietor in a strata scheme shall not cause or permit any structure to be erected on his/her lot unless prior approval is granted by the strata company by way of a resolution without dissent (s 7(2) of the ST Act). A proposal submitted to the strata company must comply with the provisions of s 7B(1) of the ST Act and reg 34 of the ST Regulations. The proposal shall be served on the strata company, and the application for approval shall set out the details of the proposal and such other information as may be prescribed by the ST Act. The grounds upon which to refuse a proposal are specified in s 7(5) of the ST Act. 24 When an application is received by the strata company, the strata council 'shall' convene a general meeting and submit the proposal to the meeting. Such a meeting 'shall' occur within 35 days after the application hasbeen received (s 7B(2) of the ST Act). If the strata council does not convene a meeting, any proprietor 'may' convene a meeting and submit the application to the meeting (s 7B(3) of the ST Act). (Page 14)
25 After the general meeting has made its decision about the proposal, notice of the decision 'shall' be given to the proponent by the strata company within 77 days after the application hasbeen served on the strata company (s 7B(5) of the ST Act. In the notice given to the proponent on behalf of the strata company, the grounds upon which the application was rejected must be disclosed (s 7B(6) of the ST Act). 26 If the required notice is not given by the strata company to the proponent, the approval applied for is taken to have been given (s 7B(7) of the ST Act). If the proposal is rejected, the proponent may seek a review pursuant to s 103F of the ST Act. 27 There are several questions arising from these provisions and the Tribunal will address those separately.
Can any proposal for an alteration of a lot be deemed to be a 'proposal' pursuant to s 7B(1) of the ST Act? 28 The proposal submitted to a strata company pursuant to s 7B(1) of the ST Act must comply with the required information specified in s 7B(1) of the ST Act and reg 34 of the ST Regulations so as to be treated as a 'proposal' for purposes of the ST Act. 29 In order for a proposal to be deemed to have been given, the Tribunal must be satisfied that the 'proposal' complies with the requirements of the ST Act. The reason is that s 7B(1) of the ST Act states that a person who is seeking approval under s 7(2) or s 7A(2) of the ST Act 'shall' serve an application upon the strata company or other proprietor and that such application 'shall' set out details of the proposal and such other information as prescribed. Section 96(2) of the Interpretation Act 1894 (WA) states that where in a written law the word 'shall' is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed. It is clear from a reading of s 7(2) and s 7B of the ST Act and reg 34 of the ST Regulations, when read as a whole, that the purpose of these provisions was to ensure that when a lot owner is applying to a strata company or another lot owner to alter their lot, they provide all necessary information to enable the strata company or other lot owner to make an informed decision as to whether the proposal should be approved or whether there is any basis to refuse the proposal. Accordingly, s 7 and s 7B of the ST Act and reg 34 of the ST Regulations impose a regime to ensure that when a strata company or other lot owner is required to consider such proposals, they have all of the relevant information from the lot owner who proposes the alteration, to enable them to properly consider the proposal. Regulation 34 of the (Page 15)
ST Regulations refers to a plethora of information. This is highly detailed information. It is clear that the legislature intended that all of this information accompany the proposal to alter a lot to ensure that all other lot owners of the strata company are provided with as much relevant information to enable them to make an informed decision as to whether to allow or refuse the proposed alteration: Knapinski at [42]. 30 The Tribunal must therefore be satisfied that the Proposal submitted by Mr Cocker contained the level of detail required by the ST Act so as to enable the respondent to make an informed decision about it. Any form of proposal, even rudimentary, would not necessarily comply with the requirements of s 7B(1) of the ST Act.
Was the Proposal served on the respondent? 31 It is not disputed that the Proposal was served per registered mail on the following persons on or around 9 August 2007: Ms Vicki Mathews, chairperson of the respondent; Ms Linda Stevenson, secretary of the respondent; and Ms Rolyne Abreu, treasurer of the respondent. 32 Ms Mathews suggested in her submission to the Tribunal that the Proposal had to be served on the strata manager and therefore that the service requirements had not been complied with. 33 The Tribunal does not accept this contention. The service of the Proposal on the three office bearers of the strata company was sufficient to comply with the requirements of s 7B(1) of the ST Act. There is no statutory requirement for the Proposal to have been served on the strata manager as well as on the office bearers. 34 The question is therefore answered in the positive; namely, that the Proposal was served on the respondent on or about 9 August 2007 in accordance with the ST Act.
Did the strata council forward the Proposal to the strata manager? 35 Ms Mathews and Ms Abreu said in their evidence that the Proposal was forwarded by Ms Stevenson to the strata manager, Mr Ross Sharland, with a request for him to convene a general meeting to consider the Proposal. 36 The Tribunal does not accept this evidence. 37 The reasons for not accepting the evidence are as follows: (Page 16)
a) there is no documentary evidence to show that the Proposal had been forwarded to or received by the office of Mr Sharland; b) neither Ms Stevenson nor Mr Sharland was called to give evidence as to whether the Proposal had been sent or received; c) Ms Abreu said in her evidence that she had later been told by Mr Sharland that he did not receive the Proposal and that the records of his office do not show the Proposal having been received; d) Ms Mathews was inconsistent in her evidence as to whether the Proposal was forwarded to Mr Sharland with the request to convene a general meeting, or whether the strata council was waiting for Mr Cocker to convene a general meeting; e) Mr Sharland, a well experienced strata manager, did not convene a general meeting to consider the Proposal; and f) the strata council made no contact with Mr Sharland to enquire why a general meeting had not been convened or, in the alternative, to remind him to convene a general meeting. 38 The only reasonable conclusion open to the Tribunal is that the strata council did not forward the Proposal to Mr Sharland and failed to discharge the duties of the strata council under s 7B(2) of the ST Act to convene a general meeting.
Did Ms Mathews inform Mr Cocker that the Proposal did not comply with reg 34(2)(f) of the ST Regulations? 39 Ms Mathews says that after she had received the Proposal from Mr Cocker, she told him orally that the Proposal did not satisfy the requirements of reg 34(2)(f) of the ST Regulations since the Proposal did not state which by-laws may be breached and how such a contravention would be dealt with by Mr Cocker. 40 Mr Cocker denies that he was told by Ms Mathews that the Proposal was non-compliant with reg 34(2)(f) of the ST Regulations. He says that if he had been told, he would immediately have addressed the shortcoming since it was obvious to him that a breach of by-laws, if any, (Page 17)
would only take place during the construction process and he could easily propose how such a potential breach could be dealt with. 41 The Tribunal prefers the evidence of Mr Cocker to that of Ms Mathews. 42 The reasons for this finding are as follows: a) Ms Mathews did not convene a strata council meeting to consider the Proposal so as to record her concerns about the Proposal. b) Ms Mathews could not recall when she had the purported meeting with Mr Cocker or where it took place. c) Ms Mathews changed her evidence during the hearing and constantly looked to the back of the hearing room to Ms Abreu for guidance or answers to the questions put by the Tribunal. For example, Ms Mathews gave contradictory evidence about the discussion she purportedly had with Mr Cocker; whether the Proposal was discussed by the strata council; and whether the Proposal was sent to Mr Sharland and by whom. The Tribunal pointed out to Ms Mathews during the hearing that aspects of her evidence appeared to be contradictory and confusing. The Tribunal also had to repeatedly direct Ms Mathews not to rely on guidance by another person and to give evidence to the best of her recollection. d) Ms Mathews could not explain why, if she had held the view that the Proposal was non-compliant, she did not arrange for the general meeting to be convened or why her assessment was not conveyed to Mr Cocker in writing. e) The first time, according to the records before the Tribunal, that Mr Sharland commented on the Proposal was in his memorandum dated 27 June 2008 when, without referring specifically to Lot 7, he made observations about several proposals that had been submitted to the respondent by proprietors to alter their lots. Mr Sharland's advice came nearly 11 months after Mr Cocker lodged the Proposal with the strata company (Page 18)
and after Mr Cocker had commenced construction of the dwelling in the belief that approval had been given by the respondent for the Proposal to proceed. 43 The Tribunal therefore finds that there is insufficient evidence to conclude that Ms Mathews informed Mr Cocker orally of any shortcoming to or concerns about the Proposal pursuant to reg 34(2)(f) of the ST Regulations.
Did the Proposal comply with the provisions of s 7B(1) of the ST Act? 44 Section 7B of the ST Act requires that an application submitted to the strata company must set out the 'details of the Proposal and such information as may be prescribed'. Regulation 34 of the ST Regulations sets out the prescribed information that is required for the purposes of complying with s 7B(1) of the ST Act. Regulation 34(2) of the ST Regulations sets out, in the case of a strata plan scheme, the prescribed information that is required. 45 The respondent does not take any issue with the compliance of the Proposal in regard to the items in reg 34(2)(a) to reg 34(2)(e) of the ST Regulations. The respondent only takes issue with the purported lack of compliance with reg 34(2)(f) of the ST Regulations in the Proposal. 46 Mr Cocker accepts that the Proposal did not address reg 34(2)(f) of the ST Regulations. Mr Cocker says it was a mere oversight, and if it had been drawn to his attention, he would have provided the information required in regard to a potential breach of by-laws and ways to address those potential breaches during the construction process. Mr Cocker says that regardless of the non-compliance with reg 34(2)(f) of the ST Regulations, the Proposal complied in substance with s 7B(1) of the ST Act. 47 The Tribunal agrees with Mr Cocker. 48 The failure to address the requirements of reg 34(2)(f) of the ST Regulations is a matter that, if properly raised by the respondent, could have been addressed by Mr Cocker. Even with the benefit of hindsight, none of those persons who gave evidence could refer to any ongoing breaches of any by-law as a result of the construction of the dwelling. The breaches that may possibly have occurred were of a temporary nature during the process of construction when it is often inevitable that a common property driveway is used; where some building material may be (Page 19)
temporarily placed on common property; or where material is moved across common property. Those risks could have been identified at the time of the Proposal but, even though the risks were not identified by Mr Cocker, the failure is not fatal to the Proposal. 49 The Proposal must be read in its entirety, and the question to the Tribunal is whether the information provided to the strata company in the Proposal, which numbered 10 pages, was detailed enough to enable the respondent to make an informed decision. 50 In the view of the Tribunal, the Proposal was detailed enough and the shortcoming in the Proposal, which was only identified some 11 months after the Proposal had been submitted, was not so serious that it prevented the respondent to make an informed decision. 51 This analysis - namely, that a proposal served on a strata company must contain sufficient detail to enable the strata company to make an informed decision - is consistent with the finding in Corser and The Owners of 5 Gairloch Street Applecross Strata Plan 18807 [2004] WASTR 53 (21 September 2004), in which the then Strata Titles Referee, Mr RJ Kronberger, said, at [71], that he could not deal with an application under s 103F of the ST Act: … unless and until a specific proposal, in respect to that plan, in compliance with s 7 and s 7B [of the ST Act], had been formally put to, and voted on, at a general meeting of the Strata Company[.] 52 Unless and until the requirements of s 7 and s 7B of the ST Act had been complied with by a proponent, no relief can be sought pursuant to s 103F of the ST Act. This reasoning is consistent with the observation by the Tribunal in The Owners of 19 Hayes Avenue Yokine Strata Plan 24114 and White & Anor [2005] WASAT 70, at [16], that: … [a] proprietor of a lot is prohibited from causing or permitting, on the lot, any structure to be erected, or any alteration of a structural kind to a structure, without the prior approval, in the case of a strata scheme of more than two lots, expressed by resolution without dissent of the strata company. The respondents should have sought the approval of the strata company before they had the air-conditioning units installed. 53 In this proceeding Mr Cocker did all that was expected of him and the Proposal was sufficiently detailed to enable the respondent to make an informed decision. The Tribunal is therefore satisfied that the Proposal dated 3 August 2007 complies in substance with the requirements (Page 20)
of s 7B(1) of the ST Act and reg 34 of the ST Regulations, that it was served on the strata company prior to the commencement of construction; and that construction only commenced after the 77 days provided for in s 7B(5)(a) of the ST Act had lapsed.
Should Mr Cocker have convened the general meeting? 54 Section 7B(3) of the ST Act provides that 'any proprietor may convene a general meeting' to consider a Proposal. 55 Ms Mathews and Ms Abreu contend that the obligation was on Mr Cocker to convene a meeting for the Proposal to be considered. Ms Mathews said in her evidence that the strata council did not convene a general meeting because the council was of the view that Mr Cocker should convene the meeting. Ms Mathews did not provide any evidence as to when and how the strata council came to such a decision or where the decision was communicated to the strata manager. 56 Mr Cocker says that he was under no obligation to convene a general meeting. He says that even if he could convene a general meeting, he would not, because his concern was that due to conflict and disputation between the owners of the strata scheme, him convening a meeting would be prejudicial to the Proposal he submitted. He therefore decided to await the outcome of the general meeting that the strata council was obligated to convene. Ms Knapinski in her evidence and submission agrees with Mr Cocker. She refers to the meeting that took place on 26 May 2007 which ended in chaos as a result of internal disputation. 57 The Tribunal does not accept the contention of Ms Mathews and Ms Abreu that Mr Cocker had an obligation to convene a general meeting to consider the Proposal. 58 Section 7B(3) of the ST Act allows a proprietor to convene a general meeting, but it does not place an obligation on a proprietor or the proponent of a proposal to convene a meeting. The obligation that rests on the strata company is that the strata council 'shall' convene a meeting, while a proprietor 'may' convene a meeting. 59 It is therefore not accepted, as contended by Ms Mathews, that the strata council was waiting for Mr Cocker to convene the general meeting. Firstly, there was firstly no obligation on Mr Coker to convene the meeting; secondly, there was no evidence that the strata council had made a decision to wait for Mr Cocker to convene the meeting; and thirdly, there is no evidence that the strata manager, Mr Sharland, gave advice (Page 21)
or was acting on any instruction to convene or not to convene a general meeting to consider the Proposal. 60 The Tribunal therefore finds that there was no obligation on Mr Cocker to convene a general meeting to consider the Proposal.
Summary of finding 61 In light of the above findings, the Tribunal concludes that approval for the Proposal dated 3 August 2007 served by Mr Cocker on or about on 9 August 2007 on the strata company is deemed to have been given by the strata company pursuant to s 7B(7) of the ST Act.
Deemed approval pursuant to s 103F of the ST Act 62 In light of the finding that the Proposal dated 3 August 2007 is deemed to have been approved pursuant to s 7B(7) of the ST Act, there is no need for the Tribunal to consider this part of the application. The application pursuant s 103F of the ST Act should therefore be dismissed.
Conclusion 63 The application for an order pursuant to s 103F of the ST Act should therefore be dismissed since the Proposal dated 3 August 2007 by Mr Cocker served on the strata company on or around 9 August 2007 to alter Lot 7 is deemed to have been approved by the strata company pursuant to s 7B(7) of the Act.
Orders 1. The application for an order pursuant to s 103F of the Strata Titles Act 1985 (WA) is dismissed since the Proposal dated 3 August 2007 by Mr Cocker to alter Lot 7 is deemed to have been approved by the strata company pursuant to s 7B(7) of the Strata Titles Act 1985 (WA).
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