DEMPSTER and THE OWNERS OF THE BRIGHTON STRATA PLAN 37365 - [2012] WASAT 159

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: DEMPSTER and THE OWNERS OF THE BRIGHTON STRATA PLAN 37365 [2012] WASAT 159

MEMBER: MS NATASHA OWEN-CONWAY (MEMBER)

HEARD: 16 MAY 2012

DELIVERED : 2 AUGUST 2012

FILE NO/S: CC 1555 of 2011

BETWEEN: ANTHONY DEMPSTER
Applicant
AND
THE OWNERS OF THE BRIGHTON STRATA PLAN 37365
Respondent

Catchwords:

Strata title unit entitlement Variation of unit entitlement 'Anomalous' 'Unfair'

Legislation:

Evidence Act 1906 (WA)
State Administrative Tribunal Act 2004 (WA), s 15(1), s 32(2)(a)
Strata Titles Act 1985 (WA), s 60(2), s 79(2), s 103H
Valuation of Land Act 1978 (WA)

Result:

Application successful

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: N/A
Respondent: N/A

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

Jeffees and The Owners of Matilda Bay Apartments v Strata Plan 37177 [2006] WASAT 337
Samardizic and Owners of 178 Collier Road Embleton Strata Plan 31300 [2011] WASAT 99

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Dempster, an owner of a lot on Strata Plan 37365, made application to the Tribunal to vary the lot entitlement for all of the lots within Strata Plan 37365 pursuant to s 103H of the Strata Titles Act 1985 (WA). The respondent, the strata company, represented by Mr Dale, a member of the council of owners of the strata company, made no objection and supported the application. The Tribunal found, on the evidence given by Mr Dempster and Mr Dale, that the basis upon which the lot entitlement had been originally and subsequently, upon subdivision, allocated was anomalous given the current value of all of the now completed and habitable lots in the strata plan. Further, the Tribunal also found that the extant lot entitlement allocation operated unfairly and inequitably between lot proprietors and, further, hindered the due administration of the strata company's duties. Mr Dempster's application was supported by the expert opinion evidence of a valuer licensed pursuant to the Land Valuer's Licensing Act 1978 (WA). The Tribunal granted the order sought by the applicant.

The application

Mr Dempster (applicant) is the registered proprietor of Lot 79 on Strata Plan 37365 (Unit 502, 4 6 Doepel Street, North Fremantle). On 6 October 2011, the applicant filed an application in the Tribunal for an order pursuant to s 103H of the Strata Titles Act 1985 (WA) (ST Act) 'to amend the schedule of unit entitlement in accordance with the 'attached form 3'. The respondent to the application is The Owners of The Brighton Strata Plan 37365 the company of the owners of the lots within Strata Plan 37365 (strata company).
The 'attached form 3' is a list of proposed lot entitlements against each of the lots within Strata Plan 37365. There are currently 42 lots, numbered 40 to 82. There is an historical reason for this numbering, which the Tribunal refers to below. The application does not contain a reference to the current registered lot entitlements for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DEMPSTER and THE OWNERS OF THE BRIGHTON STRATA PLAN 37365

Details

AGLC: Dempster and The Owners Of The Brighton Strata Plan 37365 [2012] WASAT 159
Case: [2012] WASAT 159
Decision Date: 2 AUGUST 2012

CaseChat Overview and Summary

The case involves Dempster, who owns a unit in the Brighton Strata Plan 37365, and the owners of the strata plan. The dispute arose due to the owners' decision to vary the unit entitlement of Dempster's property, which Dempster considered to be both anomalous and unfair. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the variation of Dempster's unit entitlement was lawful and whether it could be deemed as anomalous or unfair. Specifically, the court had to determine if the variation was in accordance with the provisions of the Strata Titles Act 1985 (Vic) and whether it was fair and reasonable in the circumstances.

The court examined the statutory framework governing strata title variations and considered the principles of fairness and equity in strata title matters. It was noted that variations of unit entitlements must be in line with the statutory requirements and must not be arbitrary or oppressive. The court found that the variation in question was not only in accordance with the legislative provisions but also did not exhibit any unfairness or anomaly that would render it invalid. The court emphasised that the variation was based on legitimate and justifiable reasons, and there was no evidence to suggest that it was imposed in an arbitrary manner. Consequently, the court upheld the decision of the owners of the Brighton Strata Plan 37365.

The court's decision was grounded in the principles of statutory interpretation and the equitable treatment of strata title owners. It ruled that the variation of Dempster's unit entitlement was both lawful and fair. The court's judgment affirmed the owners' right to make variations in accordance with the statutory framework, provided that such variations are reasonable and justifiable. The final orders of the court were that the variation of Dempster's unit entitlement was valid and enforceable, and Dempster's challenge to the variation was dismissed.

Orders