DELLIT and ADEN - [2012] WASAT 223

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: DELLIT and ADEN [2012] WASAT 223

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 22 OCTOBER 2012

DELIVERED : 9 NOVEMBER 2012

FILE NO/S: CC 1216 of 2012

BETWEEN: BERNADINE DELLIT
DOUGLAS PETER DELLIT
Applicants
AND
GERARD ADEN
LISA MARY ADEN
Respondents

Catchwords:

Strata Titles Act 1985 (WA) Whether respondent breached requirement to obtain consent for alteration to lot Whether work done will cause any significant inconvenience or detriment

Legislation:

Strata Titles Act 1985 (WA), s 7, s 7(2), s 36A, s 103B, s 103C, s 103G

Result:

Application dismissed

Summary of Tribunal's decision:

The applicants applied for an order under s 103G of the Strata Titles Act 1985 (WA) for an order requiring the respondents to remove two patios which they alleged had been erected without consent.
The Tribunal found that consent had been given by the predecessor in title of the applicants' lot in compliance with s 7(2) of the Strata Titles Act 1985.
The Tribunal further concluded on the facts that, in any event, the erection of the patios had not caused any significant inconvenience or detriment to the applicants. The application was accordingly dismissed.

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondents : Self-represented

Solicitors:

Applicants: N/A
Respondents : N/A

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

Hamilton v Thompson (1999) 23SR (WA) 41
Harold & Gladys Verryt and Ann Williams [2005] WASAT 101
Parker and The Owners of Timberside Villas Strata Plan 27426 [2006] WASAT 254
The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicants, Mr and Mrs Dellit, and the respondents, Mr and Mrs Aden, are respectively the owners of Lot 1 and Lot 2 on Strata Plan No 13481, having the respective postal addresses of No 1 and No 3 Sellenger Court, City Beach, Perth. The relationship between the parties is extremely strained.
Mr and Mrs Aden have owned and occupied their property for some time, whereas Mr and Mrs Dellit became owners of their lot on or about 31 January 2008. In August 2007, Mr and Mrs Aden entered into a contract for the installation of two patios, one to be constructed on the eastern side of their dwelling and the other on the western side. The exact date of installation has not been established, but the patios had been installed prior to Mr and Mrs Dellit viewing their property prior to purchase in December 2007.
Mr and Mrs Dellit thought that they were purchasing a survey strata property, based on an alleged representation made by the sales agent to the effect that the property was a survey strata but that was much the same thing as green title. They now apply for orders that the patios be removed alleging that, in breach of s 7(2) of the Strata Titles Act 1985 (WA) (ST Act), Mr and Mrs Aden failed to obtain the necessary consent for the erection of the patios. Unless otherwise stated, and to avoid unnecessary repetition, all references to sections or other parts of legislation are references to the ST Act.
Section 103G permits an application to be made to the Tribunal for the above purpose, and provides that the Tribunal shall make an order for the removal of such works if satisfied that a breach of s 7(2) has occurred, unless satisfied that the work done or intended to be done will not cause any significant inconvenience or detriment to the other proprietors.
Mr and Mrs Dellit explain that, although considerable time elapsed prior to them seeking an order for the removal of the patios, it is necessary for them to take a stand on this issue because Mr and Mrs Aden refuse to attend body corporate meetings when they are called and have ignored the ST Act. Their position is that it is necessary to establish that proper governance apply to the management of the strata scheme and, ultimately, that they wish to have an administrator appointed for that purpose.

Issues

The issues for determination are, therefore, whether:
1)Mr and Mrs Aden breached s 7(2) by failing to obtain the consent of the then owner of Lot 1; and
2)Mr and Mrs Dellit will be caused significant inconvenience or detriment if an order is not made for the patios to be removed.

Was consent obtained?

Section 7(2) provides:
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.
The strata scheme is a two lot scheme. It is to be observed that the ST Act contemplates that a two lot scheme be managed far less formally than other schemes. This is evidenced by s 36A, which releases a two lot scheme from having to keep minutes of meetings, books and statements of account, a receptacle for postal delivery, the maintenance of the roll of proprietors and from having to establish a fund for administrative purposes. According to Mr and Mrs Aden, the strata scheme was managed in a flexible and informal manner prior to the sale of Lot 1 by the former owner, Mrs Shirley Mulgrave, to Mr and Mrs Dellit. It is common cause that Mrs Mulgrave is deceased, but Mr and Mrs Aden have provided a letter dated 18 August 2012 from her son, Mr Leigh Mulgrave, to corroborate their evidence that consent was given for the erection of the patios. Mr Mulgrave was not called to give evidence. At the hearing, Mrs Dellit attempted to impugn the veracity of the letter. However, she specifically declined an invitation from the Tribunal that the matter be adjourned to enable Mr Mulgrave to be called so that she could question him on the veracity of the letter.
Mr Mulgrave writes in the letter:
To whom it may concern,
I, Leigh Mulgrave am the son of Mrs Shirley Mae Mulgrave and I was my mother's assistant with all matters pertaining to her home, life and medical care.
I recall that my mother asked Mr and Mrs Aden for their consent to paint her pergola's, [sic] gutters and trim and their consent was given verbally after my mother presented them with colour samples that I had obtained for her. At this time[,] Mr and Mrs Aden sought my mother's permission to install new gutters and patios in their own home. Colours of paint were agreed to be matched and my mother's consent given verbally for the construction to proceed. All agreements were verbal between the parties at 1 and 3 Sellenger Court, City Beach[.]
In a written submission (Exhibit 1), Mrs Dellit put forward various contentions as to why little weight should be given to Mr Mulgrave's letter. The submissions are based on hearsay statements of what Mr Mulgrave is alleged to have said at different times. The submissions are, in part, based on supposition of what Mr Mulgrave 'must have told the agent' and how, if he knew that the property was held under a surveystrata scheme, it would be inconsistent for consent to be sought about matters such as the painting of her pergolas. That, with respect, reflects a misunderstanding of the standard bylaws which apply to this scheme and, in particular, Sch 2 Bylaw 14, which prevents a proprietor, without the written consent of the strata company, maintaining within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building. Any marked change to the colour scheme without prior consent would constitute a breach of that bylaw.
Further, Mrs Dellit submitted that, because Mrs Mulgrave had lost the will to go on, such consent would not have been sought. That is mere supposition. It is equally open to infer that, with Mr Mulgrave's assistance, such consent would have been sought, particularly if it was contemplated that the property would be sold at some later date.
Mrs Dellit had the opportunity to require Mr Mulgrave's attendance and crossexamine him so as to put these contentions squarely to him.
In the circumstances, I find that consent was given for the erection of the two patios.
If this conclusion were to be considered wrong, I, in any event, consider that no order should be made for the removal of the patios for the reasons which follow.

Will significant inconvenience or detriment be caused if the patios remain?

As stated, the effect of s 103G is that, if a breach of s 7(2) is established, an order for removal of the works must be made unless the Tribunal is satisfied that the work done, or intended to be done, will not cause any significant inconvenience or detriment to other proprietors. However, if the Tribunal is so satisfied, while the Tribunal is not then bound to order removal, there remains a discretion either to make the order or not: see Hamilton v Thompson (1999) 23SR (WA) 41 at [52] (Hamilton). Hamilton also stands as authority for the meaning to be attributed to significant inconvenience or detriment, namely, that inconvenience constitutes a quality or state of being inconvenient, and detriment includes loss, damage or injury, prejudice, loss or material disadvantage, but consistent with the nature of the interests of other proprietors. Consequently, there must be loss, damage, injury or material disadvantage to those proprietors. Mere or minor inconvenience or detriment is not enough (at [50] [51]).
A view was conducted of the parcel on the morning of the hearing. During the course of the hearing, I noted that when Mrs Dellit was invited to point out to me all matters of concern or relevance to the proceeding, she pointed out only the patio on the eastern side of the property. Neither then, nor during the hearing, was anything said to suggest that the patio works on the western side in any way inconvenience or constitute a detriment to Mr and Mrs Dellit.
In relation to the patio on the eastern side, Mrs Dellit submitted that a covered patio encouraged outdoor living and entertaining, and that this constituted an annoyance. She was unable, when questioned by Mrs Aden, to provide any specific occasion on which any disturbance had been suffered.
The actual outdoor area is capable of being used for outdoor living and entertainment with or without a patio. There is certainly nothing unsightly about the patio, which is only partially visible from Lot 1. Both patios blend harmoniously with the developments on the parcel. Mr Mulgrave's letter, set out above, establishes that the colour was agreed. It is for the strata company, as made up by the then proprietors, to determine what degree of uniformity is required so that any alterations are in keeping: see Harold & Gladys Verryt and Ann Williams [2005] WASAT 101.
When Mr and Mrs Dellit took up occupation of Lot 1, they commenced to undertake a number of changes on the assumption that they were entitled to do so without seeking any approval from the proprietor of Lot 2. After being taken to task for doing so, and after coming to an appreciation that they had not acquired a surveystrata scheme to the property, Mr and Mrs Dellit formulated a plan to persuade Mr and Mrs Aden to convert to a surveystrata scheme. Part of the motivation for this was that they intended to construct a second storey extension to their home. Mr and Mrs Aden made it plain that they were not interested in converting to a surveystrata scheme, and that they were opposed to the contemplated alterations to Lot 1.
Mr and Mrs Dellit attempted to convene a general meeting of the members of the strata company to consider a motion for the conversion to a surveystrata scheme. Mr and Mrs Aden declined to attend. This was wrong on their part; they should have done so. In any event, they did later attend a further meeting convened on 3 April 2012 for the same purpose, when they voted against the motion. This led to Mr and Mrs Dellit commencing proceedings in the District Court. They subsequently elected to withdraw the proceedings and were ordered to pay the costs of Mr and Mrs Aden.
It is of note that the question of approval of the patios was raised as a matter for consideration at the general meeting.
When questioned during the hearing, Mrs Dellit attempted to justify the late raising of any issue concerning the patios on the basis that:
a)she and Mr Dellit were prepared to live with the patios if it was agreed to convert to a surveystrata scheme;
but if not,
b)they wished to exercise their rights as proprietors under a strata scheme to object on the basis that the patios were visible from outside the lot; and
c)there was no evidence of any consent having been given for their erection.
If no consent was provided, this would constitute a breach of s 7. I have found that consent was given and therefore that no breach occurred. However, on the question of detriment, there is a tension in the position adopted by Mr and Mrs Dellit. It is a factor to be taken into account that, whatever inconvenience or detriment there may be, it is an inconvenience or detriment which presented no difficulty to Mr and Mrs Dellit, provided they got their way and Mr and Mrs Aden agreed to a conversion to a surveystrata scheme.
Firstly, I do not find that there is any basis to support a conclusion that Mr and Mrs Dellit have suffered, or will suffer, any inconvenience or detriment as a result of the erection of the patios. If that is wrong and there is some inconvenience or detriment, I do not consider it to be a significant inconvenience or detriment and, that being the case, I would decline to exercise any discretion in favour of the grant of the order sought. Factors which would influence the exercise of that discretion are that the patios were able to be seen prior to the purchase of Lot 1 by Mr and Mrs Dellit, that they delayed considerably before raising any objection, and it is plain that they would not object to the patios remaining if the scheme was converted to a surveystrata scheme.
Mrs Dellit relied on The Owners of 216 Barker Road, Subiaco, Strata Plan 8596 and Stirling Brass Founders (WA) Pty Ltd [2011] WASAT 161 to support the claim for a removal order. That case is clearly distinguishable because, on the facts, a significant inconvenience and detriment was established because an unauthorised Juliet balcony had been constructed on the second storey of the building overlooking and interfering with the use of the neighbouring lots. Further, the construction had been undertaken in the face of objection of other proprietors and with the knowledge that a formal resolution was required and would be defeated. The Tribunal accepted that this raised real governance issues (in the context of a five lot scheme). The alteration was also held not to be in keeping. None of these features exist in this case.

Conclusion and further observations

For the above reasons, I find that there has been no breach of s 7(2) and that Mr and Mrs Dellit are not entitled to the relief which they seek in the form of an order for the removal of the patios. Even if a breach were to have been established, I do not consider that Mr and Mrs Dellit have suffered any significant inconvenience or detriment, and I would not exercise a discretion to grant the order sought.
The parties need to find a way to live harmoniously within the confines of a strata development subject to the control of the ST Act. I do not accept the contention of Mrs Dellit that Mr and Mrs Aden refuse to attend strata meetings and have ignored the provisions of the ST Act relevant to the governance of the scheme. Although Mr and Mrs Aden were wrong not to have attended the first general meeting, they attended a subsequent meeting and exercised their vote, as they were entitled to do, against the proposal for conversion to a surveystrata scheme. It was Mrs Dellit who made it clear at the hearing that she did not wish to communicate, even in writing, with Mr and Mrs Aden.
Mr and Mrs Dellit need to appreciate that it is no easy task to establish that an administrator should be appointed for the purposes of administering the strata company. Any such order is a remedy of last resort: see Parker and The Owners of Timberside Villas Strata Plan 27426 [2006] WASAT 254. Mechanisms exist under the ST Act for the Tribunal to appoint a fit and proper person to exercise the powers of voting of a proprietor in a two lot scheme who fails or refuses to attend a general meeting (s 103B). If a proprietor in a two lot scheme attends a meeting and, in the view of the Tribunal, acts unreasonably in refusing to agree to a resolution, the Tribunal is empowered to declare that the resolution is to be deemed to have been duly passed (s 103C). With the availability of those remedies, it is difficult to conceive why any administrator might need to be appointed. These remedies are, of course, available to both parties so that if Mr and Mrs Aden call a meeting, and Mr and Mrs Dellit either refuse to attend or unreasonably vote against the resolution, it would be open to Mr and Mrs Aden to apply to the Tribunal for appropriate relief. If Mr and Mrs Dellit do not wish to communicate directly with Mr and Mrs Aden in relation to such matters, it is open to them to appoint an agent to represent them.
It is in the interests of both parties to act sensibly in relation to these matters; otherwise they are bound to find themselves back before the Tribunal.

Orders

An order will issue:
1. The application is dismissed.

I certify that this and the preceding [31] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER