DAVINI and THE OWNERS OF PAMELA COURT STRATA PLAN NUMBER 766 - [2005] WASAT 19

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985

CITATION: DAVINI and THE OWNERS OF PAMELA COURT STRATA PLAN NUMBER 766 [2005] WASAT 19

MEMBER: MR T J CAREY (MEMBER)

HEARD: DETERMINED ON PAPERS

DELIVERED : 1 MARCH 2005

FILE NO/S: ST 80 of 2004

BETWEEN: ELIANO DAVINI
Applicant
AND
THE OWNERS OF PAMELA COURT STRATA PLAN NUMBER 766
Respondent

Catchwords:

Real Property Strata Titles Common Property Exclusive Use Strata Plan 766

Legislation:

State Administrative Tribunal Act 2004 (WA), s 7, s 11, s 60(2), s 167

State Administrative Tribunal Regulations 2004 (WA), reg 28
Strata Titles Act 1966 (WA)

Strata Titles Act 1985 (WA), s 3A, s AC(2), s 3C, s 42, s 42(8), s 42(9), s 81(7), s 90, s 93(2), s 125(2)

Result:

Application successful in part
Declaration granted with liberty to apply

Category: B

Representation:

Counsel:

Applicant: Self Represented
Respondent: Self Represented

Solicitors:

Applicant: Self Represented
Respondent: Self Represented

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

Nil

Case(s) also cited:

Nil

MR T J CAREY (MEMBER):
REASONS FOR DECISION

Issues

The issues for determination are the validity of an exclusive use by‑law and validity of a by-law permitting erection of patio fences on parts of common property (and whether this is an exclusive use by‑law).

Application transferred to the State Administrative Tribunal

This application was originally made to the Strata Titles Referee ("the Referee"). On 1 January 2005, the State Administrative Tribunal ("the Tribunal") commenced pursuant to s 7 of the State Administrative Tribunal Act 2004 (WA) ("the SAT Act"). By virtue of s 167 of the SAT Act, this matter was transferred to the Tribunal. I have been nominated to constitute the Tribunal pursuant to s 11 of the SAT Act.
In accordance with the transitional provisions in reg 28 of the State Administrative Tribunal Regulations 2004 (WA), the matter is taken to have commenced in the Tribunal. The Tribunal may have regard to any record of the former adjudicator.
In accordance with s 60(2) of the SAT Act, and consistent with the Referee's approach to the matter prior to its transfer, I have considered and determined the application on the basis of the documents received.

Applicant

The applicant is the proprietor of lot 16 on strata plan 766 ("the strata plan").

Strata Plan and relevant Act

The strata plan was registered on 28 May 1971 pursuant to the StrataTitles Act 1966 (WA) ("the 1966 Act").
In 1985, the 1966 Act was repealed and replaced by the Strata TitlesAct 1985 (WA) ("the Act"), which continues to be the relevant Act.
In these reasons, unless otherwise specified, all references to sections and schedules are, respectively, references to sections of and schedules to the Act.

Parcel

The parcel, known as "Pamela Court Mt Lawley", is situated at 5557 Second Avenue, Mt Lawley.
The parcel comprises a four-storeyed brick structure, incorporating twenty residential lots. There are five lots on each level.
The parcel includes common property service ducts, common entrance foyers, corridors, stairways, lifts and carports and surrounding common property land.

Application

By his application received by the Referee on 19 July 2004, the applicant sought orders under s 83 in the following terms:
"1)Produce all documentation pertaining to the erection of court yard fence and the inner fence for units 1, 3 , 4 and 5.
2)Remove the fence at the expense of the owners of units 1, 3, 4 and 5.
3)Removal of the courtyard of unit 2.
4)Check records of expenditure over last six years by managing agents 'John Franklin & Co' on the building".

Facts common to the parties

The application raises for consideration two resolutions of the strata company made on 29 November 1997 and 18 August 1999 respectively, and the consequential amendment to its by‑laws in each case, details of which follow.

29 November 1997Annual General Meeting ‑ resolution without dissent

The minutes of the 1997 AGM of the strata company include the following:
"… The Owners of 55 Second Avenue, Mount Lawley strata plan number 766 hereby certifies
That by resolution without dissent duly passed at a meeting of the strata company on the 29 November 1997 which became unconditional on the 27 December 1997 the by‑laws in Sch 1 to the Act as they apply to strata company were added to as follows:-
By‑law 16 Exclusive Use
The registered proprietor of each lot shall be entitled to the exclusive use and enjoyment of that part of the common property as is marked on the attached sketch as being "for the exclusive use of each lot" and prefixed 'EX'.
Moved: F Larose
Accepted: A Greenaway"
The applicant was present at the AGM and does not deny voting in favour of the resolution, although he does claim that he was not informed that the resolution extended to granting to the proprietor of unit 2 exclusive use of a courtyard area abutting the lot. According to his understanding, the motion upon which the proprietors voted was limited to the exclusive use and enjoyment of car bays.
Notification G698502 on the strata plan records that, by resolution without dissent, "duly passed at a meeting of the strata company on the 29 November 1997", the following new by‑law 16 was added to the Sch 1 by-laws of the strata company:
"The registered proprietor of each lot shall be entitled to the exclusive use and enjoyment of that part of the common property as is marked on the attached sketch as being "for the exclusive use of each lot" and prefixed 'EX'."
The areas marked "EX" on the sketch plan attached to the notification comprise twenty identically-sized car ports plus an area marked "yard" extending outwards 3.27 metres from lot 2 on the ground floor.

18 August 1999 - Extraordinary General Meeting – special resolution

The minutes of the EGM of the strata company held on 18 August 1999 record that the chairperson of the meeting was Sarah Baden‑Powell, representing "John Franklyn Strata", that the applicant had appointed Kevin McManus as his proxy, that Kevin McManus was co‑proprietor of unit 4, and that Mr Zoltan Kalotas was the proprietor of unit 1.
The Minutes include:
"… Zoltan explained to the meeting that he proposed to erect a fence around the sliding door and kitchen window with a depth of 2.3 m. This was to give the residents on the lower floors access to outside living which at the moment with the lack of privacy they were not inclined to do. The fence would also provide added security, as the tenants in unit 1 had already experienced an attempted break-in. Rosalind expressed concern over intruders gaining access to the upper floors via the fence. Further discussion regarding the security for the upper floors continued with Max Ross proposing that the maximum legal deterrents should be used when building the fence to protect the upper levels.
The meeting discussed the by‑law, which was being introduced to insure [sic] that all ground floor units built the same style of fence to insure [sic] continuity. Sarah Baden-Powell also explained that the land would remain common property therefore the unit entitlement would not be altered.
The meeting then voted on the following motions.
… Motion 1‑The owner of the unit 1 is granted permission to erect patio fence around the kitchen window and sliding door with a dept of 2.3 meters [sic]. Unit 1 could install this at any time without waiting for the owner of unit 5 to build at the same time.
For ‑ 7
Against ‑ 9
Motion denied
Motion 2 ‑ The owners of the lower levels are granted permission to erect a patio fence around the kitchen window and sliding door with a depth of 2.3 meters [sic]. Unit 1 is granted permission to install the fence provided unit 5 builds the same fence at the same time.
For ‑ 15
Against ‑ 1
Motion carried
The by‑law will be registered in 28 days …"
Prior to the meeting, the applicant handed a sealed and unmarked envelope to Mr McManus. The applicant and Mr McManus have given conflicting versions as to the instruction given by the applicant at the time. Mr Davini claimed that he told Mr McManus that it was his proxy and asked him to vote on his behalf as indicated in the proxy, whereas according to Mr McManus, the applicant's only instruction was to deliver the envelope on his behalf to the meeting, without indicating what the envelope contained, nor requesting him to vote on his behalf at the meeting. The envelope contained a proxy form completed by Mr Davini and a letter addressed to Mr Kalotas, copies of which have been supplied. The proxy form indicated an intention to appoint the owner of unit 4 as proxy. The letter stated:
"re: PATIO FENCE UNIT 1/55 SECOND AVE. MT LAWLEY
In the above matter I do not give permission to build a patio-fence on the building's common property."
The addressing of the letter to Mr Kalotas, and the reference to unit 1 as distinct from all lower level units, are explicable because the notice of the EGM had attached to it a memorandum from Mr Kalotas which stated "I am seeking permission to build a patio fence in front of the window and sliding door of unit 1" and attached a plan specific to that unit, even though the memorandum contained a proposed motion in terms that any proprietor, occupier or other resident be "permitted to erect a patio fence in front of their sliding patio door and adjacent window."
Mr McManus handed the envelope given to him by the applicant to the chairperson but it was not opened and its contents were not referred to at the meeting.
Notification H284060 registered on the strata plan records that, by special resolution passed at a meeting of the strata company held on August 1999, the following new Sch 2 by‑law was added:
"The proprietors of a [sic] unit's 1‑5 shall be permitted to erect a patio fence around the kitchen window and sliding door. The fence is to be constructed in the same material as the front security fence. The fence is to be 7.7 meters [sic] long with a depth of 2.3 meters [sic] and the height is to be the same as the front security fence. The proprietors of units 1-5 are to install and maintain the fence a [sic] their own expense. These areas will remain as common property."
By a letter dated 22 December 2003 from Mr John Gladstone, Commissioner of Titles, to the applicant, Mr Gladstone advised that his attention had been drawn to "the incorrect registration of Notification H284060 of a change of by‑laws" for the strata company. It is likely that the Commissioner’s attention was so drawn by a letter from the applicant's then solicitors to DOLA dated 14 March 2001, although there is no explanation as to the lengthy delay between the two letters.
The Commissioner’s letter stated that, on the information provided to him, Mr Gladstone was satisfied as to the following:
"(a)the motion as recorded in the minutes of meeting held on Wednesday, 18 August 1999 was not expressed in that motion to be a change of by‑laws and therefore it could not be registered as a by‑law;
(b)the notification, as lodged, was materially different from the resolution as recorded in the minutes;
(c)although the resolution does not, in express terms, grant exclusive use of portions of the common property, the permission to erect fences without any provision for access to the area by other members of the strata company appears to be a grant of a special privilege. If that is the case, then that would require a resolution without dissent under s 42(8) of the Strata Titles Act. I note that the minutes record that there was dissent to the resolution."
The letter advised of Mr Gladstone's intention on or after 27 January 2004, unless prevented by court order, to direct the Registrar of Titles to correct the strata plan by cancelling registration of the notification.
It would appear this was not done, at least prior to 15 November 2004, which is the date of a facsimile from a solicitor, apparently acting on the applicant's instructions, to Mr Gladstone which relevantly read:
"Please instruct the Registrar of Titles to cancel the registration of Notification H 284060 to finalise this matter as soon as possible as further matters are before the Strata Titles Referee and are to dealt [sic] with shortly."
This facsimile was obviously a response to a letter dated 10 November 2004 to the applicant from the Referee's office seeking verification of the applicant's claim that registration of the by-law had been cancelled. No further communication on the subject has been received.

Statutory provisions relating to by-laws

Section 42 of the Act deals with the making, amendment and repeal of by‑laws of the strata company, certain requirements for by‑laws to be effective, and the conferral of exclusive use and enjoyment of common property on individual proprietors, among other matters. The relevant sub‑sections are reproduced, to the extent necessary for the purposes of my decision, below:
"(2)The provisions set out in Sch 1 and 2 ... may be amended, repealed or added to by the strata company
(a)by resolution without dissent … in the case of Schedule 1 by‑laws;
(b)…
(c) in any other case, by special resolution
(2a)Each by-law that is additional to the by‑laws in Schedules 1 and 2 or any amendment to a Schedule 1 or Schedule 2 by‑law shall be classified in the by‑laws as
(a)a Schedule 1 by‑law; or
(b)a Schedule 2 by‑law.
(4)No amendment or repeal of a by-law or additional by-law has effect until
(a)the strata company has, not later than three months after the passing of the resolution for the amendment, repeal or additional by‑law, lodged a notice of the amendment, repeal or additional by‑law in the prescribed form with the Registrar of Titles, including in the case of a by-law made under s (8) a description of the area affected; and
(b)the Registrar of Titles has made a reference to the amendment, repeal or additional by‑law on the appropriate registered strata/survey‑strata plan.
(8)… a strata company may, with the consent in writing of the proprietor of a lot, pursuant to a resolution without dissent… make under this sub‑section only and not otherwise, a by‑law in respect of that lot conferring on that proprietor the exclusive use and enjoyment of, or special privileges in respect of the common property or any part of it upon such terms and conditions … as may be specified in the by‑law …
(9)After the expiration of the period of two years that next succeeds the making, or purported making, of a by‑law referred to in s (8) … it shall be conclusively presumed that all conditions and preliminary steps precedent to the making of the by‑law have been complied with and performed.
Section 42(11) provides that the proprietor for the time being of a lot in respect of which a by‑law referred to in s 42(8) is in force is, unless excused by the by‑law, responsible for the performance of the duty of the strata company under s 35(1)(c) in respect of the common property or the part of the common property to which the by‑law relates. Section 35(1)(c) imposes an obligation on the strata company to keep in good and serviceable repair, properly maintain and, where necessary, renew and replace the common property, including fittings and fixtures.

Applicant's submissions

The applicant (who refers to the parcel as "Parmelia Court") claims that each of the resolutions was ineffective, and its resultant by‑law invalid, albeit for different reasons.
In relation to the resolution said to have been made without dissent at the 1997 EGM, Mr Davini claims that the motion regarding exclusive use had been held over from an EGM earlier in the same year at which meeting the discussion was solely regarding exclusive use of car bays; that the notice of meeting provided to the November EGM did not put him on notice of any extension of the subject of the motion to a courtyard for unit 2; and that in the course of the meeting preceding the taking of the vote he made an announcement that he was voting for the exclusive use and enjoyment of car bays. The applicant says that he has no recollection of the proprietor of unit 2, Brian Lobban, ever asking for exclusive use of an area adjacent to his unit and requests that Mr Lobban provide written documentation evidencing such a request. Mr Davini claims he only became aware of the terms of the resolution without dissent as they appear on the notification on the strata plan when he made inquiries of DOLA in mid 2004.
In relation to the resolution made at the 1999 EGM, Mr Davini has argued that the resultant by‑law conferred exclusive use and enjoyment of parts of the common property on individual lot proprietors and as such required a resolution without dissent pursuant to s 42(8) of the Act. Given the applicant’s vote against the resolution, which is recorded in the minutes of the meeting, this requirement was not met. The purported by‑law was thus invalid, and the patio fences constructed under authority of the by‑law are illegal and should be removed.
As mentioned above, the Commissioner of Titles agrees on the invalidity of the by-law recorded in Notification H284060 based on the irregularity of the voting referred to in the preceding paragraph and the two additional reasons contained in his letter. No doubt the applicant embraces all those reasons.

Responses to application

Pursuant to the provisions of the Act as they existed at the time the application was made, the Referee gave a notice which invited submissions to the application and written submissions have been made by some 15 lot proprietors as well as the strata manager. No proprietor has supported the application, although one has suggested that the accounting issue could be pursued.
The responses opposing the application (the emphasis in each case is mine for purposes which become apparent below) include:
"… I am police sergeant and currently hold a position as the Coordinator for the Crime Prevention Unit in the Central Metropolitan Police District. That district includes numerous areas containing high-density housing with the problems inherent in that type of housing units. My staff and I provide security appraisals for all types of housing from the CBD through to Cottesloe along the river and the coast at City Beach.
In my opinion the courtyards around the ground floor units at Pamela Court provide additional security for all of the units within the block. Building security is based upon the multi-layered approach with each additional layer providing greater security.
Therefore the perimeter fence is the first defence, its height increases the chance of a person scaling it being seen and reported, each of the courtyard fences complained of, provides an additional layer of defence.
Each courtyard provides security for the sliding doors fitted to each ground floor unit; additionally the courtyards provide a level of privacy for the ground floor occupants commensurate with that enjoyed by occupants on the upper floors.
Sliding doors are amongst the easiest to breach and should be protected. I believe the courtyards should be locked so any offender must scale another obstacle should they wish to break into the units or, conversely, if they are trying to get out carrying stolen property.
It is important to consider that once any sliding door is breached every unit in the block is vulnerable from an offender inside to building …"
"… The by‑law for the courtyard fences was duly registered with DOLA and in good faith after this was done the owners of units 1, 3, 4 and 5 commenced building their respective courtyard fences. The fences and associated brick paving were built at a cost of approx $3,000 each which each ground floor unit owner paid directly to the builder
If this by‑law had not been registered then I and the other owners would not have constructed these fences.
Today we have a situation where the fences exist and there does not seem any advantage to removing the fences. These courtyard fences:
•Improve the aesthetic look of the building.
•Increase the overall value of all the units not only the ground floor units
•Provide an extra level of security for the building. (Before the fence was built there was a break in via the sliding doors of the ground floor unit 1.)
•Provide a private area for the ground floor tenants to enjoy when outside.
•Decrease the gardening costs because the Strata Company would not be responsible for maintaining these areas.
•Stop unwelcome visitors from looking through the sliding doors of the ground floor units which disturbs the privacy of the tenants.
I have spoken to some of the other upper floor unit owners who indicate that they do not object to the ground floor units having a small area for private use outside their unit. Some commented that seeing that they have a balcony area it is fair that the ground floor owners have a similar area …"
"… Again, this is unclear ‑ which fence? The 'courtyard' fence, or one or all of the inner fences. Given it is to be at the expense of the owners of units 1, 3, 4 and 5, we have assumed it is the four inner fences and have made our submission accordingly. Our reasons for opposing this are as follows:
Improved Security. The fences provide additional security for the ground floor units which are always more vulnerable than those on the upper storey, which were effectively "made safe" by improved security to the foyer. It also, indirectly, makes the whole building more secure as once access is gained to one of the ground floor units, it provides access to the foyer etc.
When we purchased the unit in 1991, there was minimal security at Pamela Court. Anyone could walk into or through the grounds and gain access to the building via the foyer entrances on the ground floor. The front fence, gates and security access to the foyer have improved the safety for all residents of Pamela Court. However, the glass sliding door of the ground floor units could still provide access if not locked or if smashed. The erection of an inner fence for these units is a further deterrent to unwanted visitors.
Improved Presentation. Pamela Court had a very bland façade prior to the installation of the front, perimeter fence and the inner for units 1, 3, 4 and 5. These structures have lifted the street appeal of the whole complex, improving values for all owners (not just those on the ground floor). The inner fences for units 1, 3, 4 and 5 were completed at the same time, and in keeping with, the other structures to give the most attractive, overall finish. The inner courtyards of units 1, 3, 4 and 5 are directly under the balconies of the above units and blend in accordingly.
Privacy for the ground floor residents. Ground floor units are more accessible to the public and have less privacy than upper floor units. The area inside the inner fences is literally the "front door step" of the individual units and as such is not an area that would be trafficked or used by other residents of visitors, according to common decency.
Added protection for ground floor units. Ground floor units are more susceptible to damage from use of Common Property than the upper story units. The glass doors would be particularly vulnerable to breakage, say from a stray ball. The inner fences reduce this risk.
The fences have been standing for five years. The relevant meetings were carried out and the fences built in 1999. Why are we being asked to pull them down after such a length of time?
At the time the fences were built the owners believed they were building the fences with the necessary authority. These fences have not been erected willy-nilly over the years at the whim of individual owners. Their erection was discussed at several meetings and approved before construction went ahead. They were done at the same time as the perimeter fence to promote uniformity and enhance the overall street appeal of the entire building …"
"… I have lived in Unit 3 of Pamela Court since 19 December 1991.
When I first moved into unit 3, unit 2 had an enclosed court yard.
The court yard has not been added to or altered in any way during the time I have lived at Pamela Court…"
"… It should also be noted that in the first piece of correspondence the Strata Company received from Mr Davini’s solicitor, it was stated that Mr Davini would agree to the granting of exclusive use if the unit owners paid $5000 to the Strata Company … the walls were all ready built and the idea for exclusive use had not been tabled at a strata meeting at that point and may explain why Mr Davini voted against the repealing of the by-law. My view as the current unit owner is that exclusive use is not practical as there is a plumbing access point inside the courtyard which must be accessible in an emergency.
Nothing further was heard from Mr Davini or his solicitor in the following 12 months at which time I purchased my unit. If Mr Davini had been actively seeking the removal of the wall, I would not have purchased the property until a conclusion had been reached. Contesting the courtyards now is very unfair to myself in particular, and to all other owners in the building who have purchased since the construction of the courtyard fences which was approximately 5 years ago.
My understanding is that a strata company can build a wall without obtaining a vote without dissent, so long as special privileges are not granted to any unit holder. I have always been aware that access cannot be blocked to the area inside the courtyard. Both before and after construction of the walls, the areas outside the ground floor units have never been used by anyone other than the occupant of the unit and the plumber; there is a plumbing access point inside each courtyard area. For these two reasons I would not consider the walls to provide a 'special privilege' so long as access is not restricted ...
I believe that the courtyards provide the following benefits for all unit owners:
•… The area inside the courtyard is maintained by each adjacent unit owner which lowers the overall garden maintenance cost for the strata company.
•Provides privacy from ground floor occupants to anyone wishing to use the common ground areas directly in front of each ground floor unit and vice versa. Occupants of other units can now enjoy these grassed areas without feeling like they are encroaching on anyone’s space
•The courtyards could provide an extra level of security to the building, which was one of the original reasons why the courtyards were proposed. For this benefit the courtyard gates would have to be locked which only Mr Davini will not allow as it becomes an issue with access to common ground.
I believe that the courtyards provide the following benefits for myself:
•Access to more private outdoor living space as enjoyed by those with balconies.
•Noise reduction from the opening and closing of gates and doors of common areas.
•It has stopped unwanted visitors from knocking on my windows which happen twice prior to the courtyard being built ... "
"… Four of the ground floor units have had half walls with pillars and railings in between, which are identical to the front wall and security gates… There are two units at the front of the block and two units at the rear that are all identical. One unit around the side has a half wall with no railings, and a small gate, which is constructed in the same brick as the building.
The courtyards are very neat and tidy and the limestone wall and railings look absolutely terrific …"
"… Please also note that the courtyards were constructed at the expense of the owners of units 1, 3, 4 and 5 and have in no way increased the costs of any other owner as a result of these constructions …"
"It is difficult to understand how the removal of the courtyards could benefit the applicant. The application does not appear to benefit anyone …"
"… since the construction of the building, ground floor owners have been contributing a considerable amount to the maintenance of the lift, an amenity they don't use …"
"… I oppose the application made by Mr Davini as I cannot support points two and three of his application ...
When we moved into the building in 1990 we recall that unit 2 had an existing courtyard. At the 1997 Strata AGM, under Special Business, a By‑Law gave my proxy to Mr Kalotas for the subsequent Extraordinary General Meeting on August 18, 1999. On the issue of the patio fence I note that the first motion was defeated, but the second passed, with one vote against it was passed without dissent on Exclusive Use. An attached sketch in support of the motion clearly shows unit 2 having exclusive use to the adjoining courtyard. According to the minutes Mr Davini was present at the meeting.
When in 1999 Mr Kalotas made a proposal to the owners to erect a patio fence in front of unit 1 I could see no reason for objection and supported his motion. As the owner of a unit that was able to enjoy a balcony, I could see no reason why the ground floor residents could not enjoy a similar facility, and after all we had already accepted unit 2 with a courtyard, with exclusive use.
I gave my proxy to Mr Kalotas for the subsequent Extraordinary General Meeting on August 18, 1999. On the issue of the patio fence I note that the first motion was defeated, but the second passed, with one vote against it.
I subsequently observed the patio fences were erected in a similar design and construction to the front fence, and in my opinion do not detract in any way from the building. It also needs to be noted that four of the ground floor units do not have exclusive use of the patio areas…
To me, the precedent established with unit 2, and Mr Davini did not oppose the adoption of the by‑law in 1997, would make it very difficult to seek the removal of the patio fences five years after their construction …"

In addition, there have been submissions from solicitors for a small number of proprietors ("the solicitors") arguing for the validity of the by‑laws in question. In relation to both the 1997 and 1999 by‑laws, the solicitors' primary submission is that the conclusive presumption in s 42(9) of the Act operates with the effect that the applicant is now unable to overturn the by‑law.
Finally, there is a submission from the strata company manager, John Franklyn Strata Services, which -
• in respect of the November 1997 resolution says that the applicant was provided with a copy of a sketch plan prior to the meeting which clearly showed the exclusive use area for unit 2;
• in respect of the August 1999 resolution argues "(t)here was never any mention of the granting of exclusive use of these areas to the owners of units 1, 3 ,4 (and) 5. The strata company was merely voting on erecting fences on common property (at the expense of those owners concerned and not the strata company)."

Considerations

I will deal with the orders sought in the application and the issue of costs in the following order:
•     (3)
•     (2)
•     (1) and (4) (together)
•    Costs

(3) ‑ Removal of the courtyard of unit 2

This claim may be dealt with shortly. There is no question that by‑law 16 in Sch 1 of the strata company's by‑laws is one conferring on the proprietor of unit 2 exclusive use and enjoyment of common property in accordance with s 42(8). It was made pursuant to a resolution without dissent on 29 November 1997, notice of which was duly lodged with the Registrar of Titles and the appropriate notification was made on the strata plan. More than two years having elapsed following the making of the by‑law before the application was made, the applicant is prohibited by s 42(9) from calling into question the preliminary steps preceding to that event. The claim being premised on an argument doing just that, it must be dismissed.

‑ Remove the fence at the expense of the owners of units 1, 3, 4 and 5.

This claim is significantly more complicated. Unlike the previous one, there is a threshold issue as to whether by‑law 15 in Sch 2 is one falling under s 42(8). There appears to be a difference of opinion on this issue between the strata manager and the solicitors, who, by relying upon s 42(9), must be taken to accept that the by‑law was one that conferred on the proprietors of the particular units exclusive use and enjoyment of common property in accordance with s 42(8). Perhaps more significantly, the lot proprietors themselves are in disagreement, as demonstrated by the emphasised portions of excerpts from their submissions that appear above. I say that disagreement between the proprietors may be more significant because at the end of the day it is the proprietors' appreciation of whether or not the by‑law confers exclusive use of each courtyard area formed on the construction of the fence (described in the by‑law as a "patio fence") which dictates whether those areas are regarded as off limits to everyone other than the proprietor of the unit with the fence which now abuts it.
In my opinion, consistent with both the majority view of the proprietors and common sense, the substantive effect of the by‑law was to confer upon the proprietors of units 1, 3, 4 and 5 exclusive use and enjoyment of the patios enclosed by, and defined by, the fences. The by‑law as described in the notification (which, as noted above, is under serious question, at least by the Commissioner of Titles) indicates that the four proprietors were to install and maintain the fences at their own cost, and there is uncontroverted evidence that this is what has occurred. It would be most surprising if any proprietor would willingly incur the cost of constructing a fence unless assured of exclusive rights to use and enjoy the patio.
To that extent, I am in agreement with both the applicant and the solicitors. The solicitors then contend that the conclusive presumption in s 42(9) operates to deny the applicant's claim. The problem as I see it with this argument is that s 42(9) is conditioned by s 42(8). Before one gets to s 42(9), there must have been made or purportedly made a by‑law possessing the characteristics set out in s 42(8). Those characteristics are:
•     with the written consent of the proprietor of the affected lot;
•     pursuant to a resolution without dissent;
•     confers on the proprietor the exclusive use and enjoyment of or special privileges in respect of the common property or any part of it.
By‑law 15 is lacking one of these characteristics, namely, it was not made pursuant to a resolution without dissent, nor was it purportedly so made. The minutes of the EGM record that the motion proposing the resolution was carried on a vote of 15 for and 1 against. The notification refers to the by‑law as being made by special resolution. According to the notification (but no mention of this is made in the minutes) the by‑law is a Sch 2 by‑law, and therefore not a Sch 1 by‑law with its condition precedent of a resolution without dissent. In such a case, it would have been, and may still be, possible for a proprietor who voted in favour of the resolution to apply under the Act to another forum to have legitimacy bestowed on the resolution retrospectively, but that is not something this Tribunal can do.
The solicitors have raised, as one of their alternative arguments, a submission that the resolution was (despite the evidence to the contrary) one without dissent. According to the argument, the minutes were in error in recording the applicant’s expression of intent in proxy form in the sealed envelope as the single dissenting vote, on the basis that Mr Davini had given a proxy in favour of the owner of unit 4, that person (or those persons) was (or were) not instructed as to and therefore unaware of the proxy, and did not in fact act as proxy. Although this accords with the evidence, there also exists the possibility under s 3AC(2) of a person exercising his entitlement to vote for the purposes of the Act, and specifically against a resolution, by signifying in writing his disagreement. The solicitors accept that the contents of the envelope might constitute such writing, but contend that it was not validly served on the strata company and hence s 3AC(2) could not apply.
The evidence is that at the request of the applicant, Mr McManus handed the envelope to "the Property Manager", a reference to the chairperson of the meeting, Ms Baden-Powell. In my view, this constitutes proper service of the written advice pursuant to s 3AC(3) on the strata company in accordance with s 125(2)(a) and Sch 1 by‑law 7(2). By handing the envelope to the chairperson at the meeting, Mr McManus, acting as agent of the applicant, served the strata company with written advice of the applicant’s disagreement with the resolution within the terms of s 3AC(2), which was acted upon by the strata manager in the drafting of both the meeting's minutes and notice to the Registrar of Titles.
In any event, I would have thought, without reaching a final view in light of my other findings, serious doubts exist regarding the effectiveness of the purported by‑law in accordance with s 42(4) because of the significant inconsistencies noted in the Commissioner of Titles' letter between the resolution recorded in the minutes and the by‑law as it appears in the notification.
For the above reasons, I find that the patio fences adjoining units 1, 3, 4 and 5 are illegal structures and as things currently stand ought be removed. This is however an unsatisfactory result given that the proprietors concerned constructed the fences according to the purported authority of a by‑law they assumed was valid (and in one case purchased the lot after the fence was complete without any reason to believe it illegal). Further, it is the consistent evidence of the proprietors other than Mr Davini that the fences have added value both to those proprietors' holdings and to the strata scheme as a whole in terms of security and appearance. I have already noted the possible recourse that proprietors may have to retrospectively legitimise the resolution for the by‑law.
My orders are limited to a declaration under s 93(2) of the Act that the by‑law is invalid and liberty to the applicant to apply within a restricted period. Although Mr Davini did not expressly apply for an order under s 93 and relied upon the more general s 83(1), his application, predicated on the making of a by‑law without power or not in accordance with the Act, invokes the jurisdiction of the Tribunal under the former provision. In the circumstances I have treated this part of the application as having been brought under s 93. This cannot cause prejudice to any other party and was indeed anticipated by the solicitors as reflected by their submissions.
The declaration under s 93(2) and liberty to apply will allow the parties the opportunity to enter into discussions that hopefully will resolve their differences without the need for further order. The discussions might include an acknowledgement that the balconies the use of which is enjoyed by proprietors of upper floor lots are part of the lots of those proprietors as reflected in their respective unit entitlements, whereas the fenced areas used by the ground floor proprietors were by the terms of the former by-law to remain part of the common property.
(1)Produce all documentation pertaining to the erection of court yard fence and the inner fence for units 1, 2, 4 and 5, and
(4)Check records of expenditure over last six (6) years by managing agents 'John Franklyn & Co' on the building.
The Tribunal's power to order the supply or production for inspection of documents by a strata company is found in s 90 of the Act. That section requires that the Tribunal must be satisfied that the strata company has wrongfully –
•withheld from the applicant information to which he is entitled under the Act; or
•failed to make available for inspection by the applicant or his agent a record or document that under the Act he is entitled to inspect.
The strata manager, John Franklyn Strata Services, states that all of the documentation referred to in claim (1) has been provided or made available, that the applicant and his solicitor attended their offices at some length and inspected documents and copies of documents were provided on that occasion, and that for the past six years detailed financial statements have been provided to lot owners and accepted by the strata company and the proprietors present at the AGM. The applicant, in response to these contentions, merely disputed the length of the attendance by him and his solicitor at the strata manager’s offices and referred to three documents that he says he did not have previously which were obtained from the strata manager through inquiry. He does not identify any documents which he claims are yet to be provided and should have been, and his need for documents falling within claim (1) would appear to have been overtaken by the declaration I have made on claim (2). I am not satisfied that the strata company (or its agent strata manager) has committed either of the wrongs set out in s 90 and therefore am unable to make any order under that section.

Costs

Both the applicant and the solicitors seek an order for costs on vindication of their respective positions. My power to order costs in matters under the Act is severely limited by s 81(7), the terms of which prevent me from making any order for costs in this matter.

Orders

1.There be a declaration pursuant to s 93(2)(a) of the Act that by‑law 15 in Sch 2 of the strata company’s by-laws as recorded in Notification H284060 is invalid.
2.The applicant have liberty to apply for any further relief arising from these reasons for decision, such liberty to expire at 4.00 pm on 29 April 2005.
3.The application is otherwise dismissed.
4.The respondent give a copy of the written decision to each person who was served with the application in accordance with s 79(2) of the Act.

I note the requirement for the applicant to lodge a copy of the order, duly certified, with the Registrar of Titles pursuant to s 115(1) and (2) of the Act.

I certify that this and the preceding 22 pages comprise the reasons for decision of the Tribunal.

________________________

T J CAREY
MEMBER