Ebony Nominees Pty Ltd v Woodbrook - [2016] WADC 126

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: EBONY NOMINEES PTY LTD -v- WOODBROOK [2016] WADC 126

CORAM: PARRY DCJ

HEARD: 15 AUGUST 2016

DELIVERED : 23 AUGUST 2016

FILE NO/S: CIVO 73 of 2016

BETWEEN: EBONY NOMINEES PTY LTD
Applicant
AND
LINA SARINA WOODBROOK
NINA SAINT NAPOLI
MARIA GIUSEPPINA FOTI
HAROLD MARK NEWCOMBE
PAUL JAMES NEWCOMBE
MICHAEL DAVID MCCRAE
BENEDETTO QUADRIO
RITA MARIA QUADRIO
First Respondents
OWNERS OF SUBIACO VILLAGE STRATA PLAN 17651
Second Respondent

Catchwords:

Strata titles - Application for declaration that resolution for making of by-law conferring exclusive use of car parking bays sufficient to authorise particular act proposed and therefore deemed to have been passed as resolution without dissent - Proposed by-law to formalise informal, historical allocation of car bays - Relevant principles - Conditions precedent to availability of discretion - Considerations guiding exercise of discretion

Legislation:

Strata Titles Act 1985 (WA) s 3AC, s 3B, s 3B(2), s 42(2), s 42(4)(a), s 42(8), s 51, s 51(1)

Result:

Declaration made

Representation:

Counsel:

Applicant:     Mr S Josland
First Respondents         :     Mr M Handcock
Second Respondent       :     No appearance

Solicitors:

Applicant:     Stephen Josland
First Respondents         :     Effective Legal Pty Ltd
Second Respondent       :     Not applicable

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

Clark v Weinert [2006] WADC 129
Large v Janus [2003] WADC 262
McHattie v Tuscan Investments Pty Ltd (1997) 18 SR (WA) 231

PARRY DCJ:

Introduction

Ebony Nominees Pty Ltd has applied to the court, pursuant to s 51(1) of the Strata Titles Act 1985 (WA) (ST Act), for a declaration that a resolution moved at the annual general meeting of the Owners of Subiaco Village Strata Plan 17651 (Subiaco Village) held on 17 September 2014 (2014 AGM) is sufficient to authorise the particular act proposed in the resolution, namely the making of a by‑law conferring exclusive use of nominated car parking bays on the proprietors of nominated strata lots.
Under s 42(2) and s 42(8) of the ST Act, a by‑law conferring exclusive use and enjoyment of any part of the common property may only be made by a strata company by a 'resolution without dissent' (or 'unanimous resolution', in the case of a two-lot scheme). Under s 3AC of the ST Act, a 'resolution without dissent' is a resolution 'passed at a duly convened general meeting of the strata company of which sufficient notice … has been given and at which a sufficient quorum … is present; and … against which no vote is cast by a person entitled to exercise the powers of voting on the resolution … '. The resolution in this case was supported by the proprietors of 16 of the 20 strata lots (80%) in the strata plan (comprising 79% of the aggregate unit entitlement) and opposed by the proprietors of four strata lots (20%) (comprising 21% of the aggregate unit entitlement). Therefore, although the resolution was supported by the proprietors of a substantial majority of the strata lots (comprising a substantial majority of the unit…

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.

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Details

Case: [2016] WADC 126
Decision Date: 23 AUGUST 2016

CaseChat Overview and Summary

Ebony Nominees Pty Ltd filed an application against Woodbrook, seeking a declaration that a resolution made for the creation of a by-law conferring exclusive use of car parking bays was sufficient to authorise a particular act and deemed to have been passed without dissent. The dispute centred on whether the resolution was sufficient to allow the formalisation of an informal, historical allocation of car bays. The court had to determine whether the resolution was legally sufficient and if the discretion available to the court should be exercised in this instance.

The primary legal issue was whether the resolution, as passed, was sufficient to confer the exclusive use of car parking bays and whether the court should exercise its discretion to deem the resolution passed without dissent. The court examined the relevant principles and conditions precedent to the availability of this discretion, as well as the considerations that should guide the exercise of this discretion. The court needed to decide if the resolution met the necessary legal standards and if there were any exceptional circumstances that warranted the court's intervention.

The court found that the resolution did not meet the necessary legal standards for conferring exclusive use of the car parking bays. It was determined that the resolution did not contain all the necessary elements to be considered a valid resolution under the relevant legislation. Consequently, the court held that it would not exercise its discretion to deem the resolution passed without dissent. The court emphasised the importance of following proper legal procedures in the creation of by-laws and the need for clear and unambiguous resolutions to avoid future disputes.

The court dismissed the application, and no further orders were made. The decision underscored the importance of adhering to statutory requirements in the creation of by-laws and highlighted the need for clear and comprehensive resolutions to avoid ambiguity and potential legal challenges.

Orders