D'NETTO and THE OWNERS OF KIAH GARDENS STRATA PLAN 2512
[2017] WASAT 90
•23 JUNE 2017
D'NETTO and THE OWNERS OF KIAH GARDENS STRATA PLAN 2512 [2017] WASAT 90
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 90 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:443/2017 | 12 JUNE 2017 | |
| Coram: | MS H LESLIE (MEMBER) | 23/06/17 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | HAZEL D'NETTO THE OWNERS OF KIAH GARDENS STRATA PLAN 2512 |
Catchwords: | Strata title Control and manage common property Repair Maintain Renew and replace New technology |
Legislation: | Strata Titles Act 1966 (WA) Strata Titles Act 1985 (WA), s 35, s 83(1), s 84(1) |
Case References: | Drexell London (a firm) v Gove (Blackman) [2009] WASCA 181 |
Orders | 1. The application is dismissed. |
Summary | The applicant strata owner sought to have the strata company take responsibility for the replacement of an old analogue common TV antenna in the complex as part of its obligations to maintain common property. In the view of the Tribunal, the obligation to 'renew and replace' in maintenance matters has to be read in the context of a 'like for like' installation when repair or maintenance is either not possible or is not considered to be a prudent use of funds. It is not intended to be interpreted as endorsing a wholesale upgrade in technology.,The applicant's claim was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STRATA TITLES ACT 1985 (WA) CITATION : D'NETTO and THE OWNERS OF KIAH GARDENS STRATA PLAN 2512 [2017] WASAT 90 MEMBER : MS H LESLIE (MEMBER) HEARD : 12 JUNE 2017 DELIVERED : 23 JUNE 2017 FILE NO/S : CC 443 of 2017 BETWEEN : HAZEL D'NETTO
- Applicant
AND
THE OWNERS OF KIAH GARDENS STRATA PLAN 2512
Respondent
Catchwords:
Strata title - Control and manage common property - Repair - Maintain - Renew and replace - New technology
Legislation:
Strata Titles Act 1966 (WA)
Strata Titles Act 1985 (WA), s 35, s 83(1), s 84(1)
Result:
Application dismissed
Summary of Tribunal's decision:
The applicant strata owner sought to have the strata company take responsibility for the replacement of an old analogue common TV antenna in the complex as part of its obligations to maintain common property. In the view of the Tribunal, the obligation to 'renew and replace' in maintenance matters has to be read in the context of a 'like for like' installation when repair or maintenance is either not possible or is not considered to be a prudent use of funds. It is not intended to be interpreted as endorsing a wholesale upgrade in technology.
The applicant's claim was dismissed.
Category: B
Representation:
Counsel:
Applicant : Self Represented
Respondent : Self Represented
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Drexell London (a firm) v Gove (Blackman) [2009] WASCA 181
Application
1 This is an application under s 84(1) of the Strata Titles Act 1985 (WA) (ST Act) pursuant to which the Tribunal may make an order for the settlement of the dispute or the rectification of complaint. The applicant is an owner of a unit in the relevant strata complex. The respondent is the relevant strata company.
2 The application covered four issues: Issues 2 and 4 were dismissed by order of the Tribunal made 20 March 2017. Issue 3 was dismissed by order dated 1 May 2017. The sole remaining issue for the determination of the Tribunal is the item numbered 1 in the original application. The order sought by the applicant is 'the replacement of the TV antenna by the [respondent]'.
The essential issue
3 What the Tribunal understands the applicant to be seeking is for the respondent to replace the now ineffective common TV antenna pursuant to its obligations under s 35 (1)(c) of the ST Act. The applicant appears to allege that the strata company has failed in its duty to keep the existing antenna in good and serviceable repair, properly maintained and, where necessary, replaced as part of the common property of the strata scheme.
The Plan
4 The relevant strata plan was registered on 19 July 1974 pursuant to the Strata Titles Act 1966 (WA). The 1966 Act was repealed by the ST Act. The complex is a 12 lot scheme in Maylands, being 12 strata units in two blocks of six, each block being three ground floor and three first floor units. The unit entitlement for each lot is one unit each out of a total of 12. The lots also share common property. Certain additional bylaws relating to exclusive use of parts of the common property were passed on 14 January 1997. Those amendments do not have an impact on the subject of this dispute.
Legal Framework
5 Section 35(1) of the ST Act states the duties and obligations of the strata company being, inter-alia, to
…
(b) control and manage the common property for the benefit of all the proprietors; …
(c) keep in good and serviceable repair, properly maintain and, where necessary, renew and replace
(i) the common property, including the fittings, fixtures and lifts used in connection with the common property; …
…
and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause[.]
The respondent's position
6 It is the respondent's position that the strata company is not obliged to install a new antenna as requested by the applicant because this request is not a repair or replacement of the current common property which is an analogue antenna. The respondent says that the applicant is requesting the installation of an entirely new system of different technology, namely a high definition (HD) digital antenna, and that this is an upgrade not a replacement.
7 The respondent asserts that the TV reception issues that the applicant is experiencing have not arisen from damage or deterioration to the current system, but from the decision of the government to switch off the analogue TV channels in favour of a new technology. The evidence is that the 'switch off' began in Australia in 2010 and since the end of 2013 all TV channels have been broadcast in digital only.
8 It appears that the applicant concedes this, having written 'bad reception due to analogue system to be upgraded to digital' in her letter to the strata company council dated 22 May 2017.
9 The respondent's position is that the applicant is requesting that the strata company install a 'different' and 'new' technology that is considered an 'upgrade' from redundant technology; that what is involved is not a 'likeforlike' repair or replacement of existing common property due to damage or deterioration. According to the respondent, the quotes from Antenna Masters provided in 2017 and also at the time of an earlier enquiry in 2013, both confirm that 'nothing of what is currently installed into the complex is suitable for high definition digital TV reception'. The 2013 quote explains that 'modern high definition digital TV transmissions require something different'. The respondent says that this upgrade is not an obligatory duty of the strata company.
10 The respondent in addition claims that any signal that the applicant has been recently receiving is not derived from the existing analogue antenna, but from 'peripheral signals' that are being picked up by the old style 'bunny ears' indoor individual antenna she has been using since the analogue TV channels were switched off in 2013. The respondent alleges that if the applicant has recently been experiencing even further deteriorated reception, this is due to maintenance issues with her individual indoor antenna, not due to differences in the analogue antenna as this system became redundant when the analogue channels were switched off.
11 It appears to be common ground that the cost of replacing the current system with a functional common TV antenna for the complex would be $2,988 as appears from the quote obtained by the strata manager from Antenna Masters. Following the 'switch off' of the analogue channels in 2013, it appears that the strata council decided not to install a new HD digital TV antenna to service all the lots. The respondent's position is that such an upgrade could only take place by a majority vote of all proprietors. The respondent has canvassed all 12 proprietors of whom most (eight out of the nine who responded) do not want or require the new system at this time. Several proprietors have installed their own digital TV antennas to service their individual lots at their own cost. If the applicant wishes to receive the new HD digital channels, the respondent's position is that she should upgrade her own individual aerial at her own cost.
Evidence
12 The Tribunal accepted the bundle of documents lodged by the respondent in support of its case into evidence. The Tribunal accepted all of the various letters and documents lodged by the applicant with the Tribunal into evidence.
13 In the material lodged by the parties there is reference to another issue currently facing the strata company which is the cost of the upgrade of the power supply to the complex. This is not a matter which is before the Tribunal in this proceeding. The impact of levies related to that matter is not a relevant consideration in this matter. In addition, the applicant purports to raise other issues relating to the past performance of the strata company in relation to other matters. These are also not matters which are before the Tribunal in this proceeding. The sole issue for determination by the Tribunal is whether the respondent strata company has failed in its duty under s 35(1)(c) of the ST Act to keep the existing antenna in good and serviceable repair, properly maintained and, when necessary, to replaced it as part of the common property of the strata scheme.
14 The Tribunal made preliminary orders directing the parties, in the event that they propose to call witnesses, to file summaries of the evidence to be given by each witness and including the witnesses name on relevant qualifications or experience.
15 The respondent called no witnesses and presented its case by reliance on documents put into evidence and the making of submissions.
16 The applicant attended the hearing and, to a limited extent, gave evidence and made submissions on her own behalf. She relied on the documents lodged.
17 In her oral evidence to the Tribunal, the applicant conceded that her TV was no longer connected to the common antenna because the reception is unsatisfactory with static noise, lines across the screen etcetera; that she relied on the freestanding 'bunny ears' style interior antenna which she also conceded did not have good reception.
18 The applicant further conceded that the current common analogue antenna, even if properly maintained and functioning properly as an analogue antenna, would not be able to receive, at an appropriate quality level, the high definition TV broadcast. She was prepared to accept the evidence adduced from Antenna Masters to this effect. Her position is that the upgrade to a common HD antenna is the responsibility of the respondent as part of their obligations under s 35(1)(c) to 'renew and replace'.
Consideration
19 There is little in dispute factually in this matter. There is no dispute that the common television antenna on this unit complex falls into common property. The sole question for the Tribunal is one of interpretation. The question is whether or not the replacement of the common analogue television antenna with a common high definition television antenna falls within the respondent's obligation to 'keep in good and serviceable repair, properly maintain and, where necessary, renew and replace … common property'. The Tribunal accepts the respondent's argument that it does not. The Tribunal accepts, as does the applicant, the evidence that even if properly maintained and functioning at 100% capacity as an analogue antenna, the existing common antenna would not be able to receive the high definition TV broadcast. The correspondence from Antenna Masters read in conjunction with the extract of materials regarding the analogue to HD switchover, provided by the Australian Building Codes Board, supports the conclusion that HD television is a different technology that has superceded the now defunct analogue television broadcast technology that was switched off in 2013. For the applicant to be able to receive quality TV reception through a common antenna currently, there appears little argument that the old analogue common antenna would need to be replaced, not with a new analogue one (assuming such things are even available) but rather that new technology would need to be installed.
20 In the view of the Tribunal, this constitutes an upgrade to the existing analogue system. It is not either 'repair' or 'maintenance' to the currently existing analogue system in the sense in which those terms have come to be understood since the matter of Drexell London (a firm) v Gove (Blackman) [2009] WASCA 181.
21 In the view of the Tribunal, the obligation to 'renew and replace' has to be read in the context of a 'like for like' installation when repair or maintenance is either not possible or is not considered to be a prudent use of funds. It is not intended to be interpreted as endorsing a wholesale upgrade in technology. The example provided by the respondent regarding telephony is an apposite comparator. If landline phone connections were discontinued by government and connections became redundant, it would not be reasonable to require the respondent to supply all owners with a mobile connection, that being a completely different technology.
22 It is to be noted that, in the view of the Tribunal, the respondent has behaved appropriately in its attempts to assist the applicant. It has canvassed the views of other owners with a view to considering whether a special strata levy should be imposed to fund an upgrade in the common antenna to an HD antenna and has obtained not only quotations as to the cost of such an upgrade in the common antenna (for the whole complex), but also for the cost of installing an individual HD antenna just for the applicant's unit. It has considered the input of other owners which was substantially in favour of not pursuing an upgrade. It has acted consistently with its obligation to manage the common property for the benefit of all the proprietors.
23 The applicant's claim fails. She has not established that the respondent is in breach of its obligations under s 35(1)(c) of the ST Act.
Orders
The Tribunal makes the following order:
1. The application is dismissed.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS H LESLIE, MEMBER
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