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 entitlements) in the strata scheme, it was not a 'resolution without dissent'.
If the court makes the declaration sought by Ebony Nominees, then, relevantly under s 51(1) of the ST Act, 'the resolution shall be deemed to have been passed as … a resolution without dissent …'.
The resolution states as follows:
Scheme By Laws be amended by the addition of Schedule 1 By Law numbered 17 stating:
17.Exclusive use of car parking bays
17.1Each of the Proprietors of the Lots listed in column 1 of the below table have Exclusive Use of the car parking bays listed in column 2 of the below table to use to:
(a)park registered motor vehicles not including trailers, boats, water craft or caravans; provided that they
(b)keep each car parking bay over which they each have Exclusive Use clean, tidy, free from grease and oil and well maintained; and
(c)reasonably reimburse to the Strata Company any money the Strata Company expends due to that Proprietor not fulfilling its duties under section 42(11)(b) of the Strata Titles Act 1985 including any enforcements costs:
17.2The Proprietors of Lots 86, 87 and 88 in addition to their Exclusive Use rights under By Law 17.1 can use the car bays over which they each have Exclusive Use to store bins and kegs.
(It appears that par 2 of the proposed by-law erroneously omits the words 'having Exclusive Use of car parking bays' between the word 'lots' and the number '86', as the strata plan does not include lots numbered 86, 87 and 88).
Ebony Nominees is the proprietor of lot 10 in the strata plan.
As noted earlier, the proprietors of four lots, namely lots 1, 3, 6 and 7, voted against the resolution at the 2014 AGM. The proprietors of these lots are named as the first respondents in the proceeding and oppose the making of the declaration sought by Ebony Nominees.
The Owners of Subiaco Village is named as the second respondent in the proceeding, but did not take part in the hearing.

Subiaco Village

The Subiaco Village strata plan was registered on 6 July 1989 and at that time contained 17 strata lots and common property. On 12 June 1992, lot 9 was sub‑divided into lots 18, 19, 20 and 21, and since that time the strata plan has contained 20 strata lots and common property.
The strata plan comprises a two‑level retail and commercial development, which is known as Subiaco Village, located at No 531 Hay Street, Subiaco, with frontages to Hay Street, Forrest Street and Denis Street (site). The current land uses at Subiaco Village are Medicare office (lot 1), hairdressing salons (lot 2 and lot 11), retail shops (lot 3, lot 4, lot 6, lot 7, lot 8, lot 18 and lot 19), offices (lot 5, lot 14, lot 15, lot 16 and lot 17), tavern (lot 10), restaurants (lot 12 and lot 21), nursery (lot 13), and medical (lot 20).
The common property of the strata plan includes approximately 200 on‑site car parking bays. Approximately 100 of the car parking bays are operated as a public car park under an arrangement between Subiaco Village and Wilson Parking.

Exclusive use of car parking bays at Subiaco Village

At the inaugural annual general meeting of the strata plan held on 31 July 1989 (inaugural AGM), the developer and original owner of all of the strata lots passed a resolution (obviously, without dissent) to make a by‑law conferring exclusive use of the remaining 100 car parking bays on the proprietors of nominated strata lots. However, the by‑law did not come into effect, because, contrary to s 42(4)(a) of the ST Act, the strata company had 'not later than 3 months after the passing of the resolution for the … additional by‑law, lodged a notice of the … additional by‑law in the prescribed form with the Registrar of Titles'.
It is common ground that the proposed allocation of nominated car parking bays for exclusive use by the proprietors of nominated strata lots in the resolution moved at the 2014 AGM reflects the allocation of car parking bays for exclusive use in the resolution passed without dissent at the inaugural AGM. It is also common ground that, notwithstanding the lack of legal effect of the by‑law conferring exclusive use of car parking bays in the resolution passed without dissent at the inaugural AGM, since the initial occupation of Subiaco Village in 1989, and throughout the lifetime of the development, the 100 car parking bays have been informally allocated to, and exclusively used by, the proprietors of the nominated strata lots on the basis of the resolution passed at the inaugural AGM.
Thus, the exclusive use of the 100 car parking bays as prescribed in the by-law proposed to be added by the resolution moved at the 2014 AGM has in fact operated on a de facto, although not de jure, basis at the site for many years and indeed since Subiaco Village commenced operation.
As Ebony Nominees contends, the purpose of moving the resolution to make the by-law concerning exclusive use of car parking bays at the 2014 AGM – and the purpose of this proceeding for a declaration having the effect that that resolution would be deemed to have been passed as a resolution without dissent – is to formalise the informal, historical allocation and exclusive use of car parking bays at the site.
However, Mr Harold Newcombe, a co-owner of lot 3 in the strata plan and one of the first respondents, gave evidence, which was not questioned or contradicted and which I accept, that 'there has always been a degree of contention regarding the exclusive use of the car bays'. When he and his co‑owner purchased lot 3 in December 1991, Mr Newcombe was 'made aware of the allocation of car bays on an exclusive use basis' and spoke with the selling agent, Richard Ellis, and complained that the allocation was 'unfair'. Mr Newcombe gave evidence that the selling agent agreed with him and that he was told that the arrangement was 'temporary' and 'could be changed'. However, it appears that the arrangement has never been changed.
There is also evidence that car parking allocations have been the subject of discussion at four annual general meetings of the strata plan between 2004 and 2008 and was also the subject of the discussion by the Strata Council in 2007. For example, the minutes of the annual general meeting held on 30 August 2006 state as follows:
The Car parking Bay allocation resolution which was passed unanimously at the Inaugural Annual General Meeting dated the 31^st July 1989 was discussed.
All Owners present provided various proposals that could be considered in lieu of the agenda resolution.
Discussion of approximately 1 hour on the resolution failed to reach a consensus …
The minutes then record that a resolution to make a by-law allocating exclusive use of car parking bays on the basis of an attached plan was put to the meeting and lost as a resolution without dissent, with eight votes in favour, five votes against and two votes abstaining. The minutes then state:
Owners present did not give indication to the meeting of future directions in relation to the Car Park Allocation issue.
Furthermore, on 23 June 2008, Mr Don Eftos, a certified practising valuer and a director of Pember Wilson & Eftos Valuers, prepared a valuation report for the Owners of Subiaco Village for the purpose of reassessment of unit entitlements 'taking into account the strata re‑subdivision and incorporation of parking bays with strata lots' (par 7.1). The introduction to Mr Eftos' report states as follows:
In arriving at our reassessment of unit entitlements we have assessed the capital value of each unit taking into account the age and standard of the improvements, the site and the use attributable to each strata unit and have also taken into account the valuable car parking spaces to be allocated to each unit.
With these factors in mind we have investigated recent sales of comparable properties that have occurred in the immediate area and researched rental evidence of comparable properties in order to establish the fair market rentals for each tenancy in order to help further assist with the assessment of value.
We have utilised the direct comparison and capitalisation approaches as the principle [sic] approach to the value of each unit. (emphasis added)
On the basis of this valuation, Mr Eftos recommended a change of unit entitlement for each of the 20 lots in the strata plan. Mr Eftos also recommended a change in the car parking allocations for each of the 20 lots in the strata plan from the number allocated in the inaugural AGM resolution, and thereafter informally, to a different number which the report said is 'required' for each lot. Mr Eftos recommended that a total of 147, rather than 100, car parking bays at the site should be allocated for the exclusive use of the proprietors of strata lots.
Annexure HMN 13 to Mr Newcombe's affidavit contains a schedule entitled 'Exclusive Use Car Parking Comparison', which shows, for each of the 20 strata lots, the proposed allocation of car parking bays under the 2014 AGM resolution (out of a total of 100 bays), the number of car parking bays stated as 'required' in Mr Eftos' report (out of a total of 147 bays), and the 'pro‑rata' number of car parking bays 'required' on the basis of the number stated as 'required' in Mr Eftos' report not reduced by one-third (therefore, out of a total of 100 bays).
On the basis of this evidence, which was not questioned or contradicted, I find that the 'pro‑rata', 'required' number of car parking bays for each of the lots owned by the first respondents on the basis of Mr Eftos' report would be greater than the proposed allocation under the 2014 AGM resolution. In particular, lot 1 would be allocated four car parking bays (rather than two), lot 3 would be allocated eight car parking bays (rather than three), lot 6 would be allocated four car parking bays (rather than two), and lot 7 would be allocated seven car parking bays (rather than two).

Legislative framework and principles

Section 51(1) of the ST Act states as follows:
In any case where under this Act a unanimous resolution or a resolution without dissent is necessary before any act may be done and that resolution is not obtained but the resolution is supported to the extent necessary for a special resolution, a person included in the majority in favour of the resolution may apply to the District Court to have the resolution as so supported declared sufficient to authorise the particular act proposed and if the District Court so orders, the resolution shall be deemed to have been passed as a unanimous resolution or a resolution without dissent, as the case may be.
It is apparent from this provision that there are three requirements or conditions precedent which must be satisfied before a discretion to make a declaration can arise and be exercised by the court.
First, a unanimous resolution or a resolution without dissent must be required by the ST Act before a proposed act may be done. As noted earlier, 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).
Secondly, the resolution must be put to and voted on at a duly convened general meeting of the strata company and 'supported to the extent necessary for a special resolution'.
The requirements for a 'special resolution' are set out in s 3B of the ST Act. Relevantly, under s 3B(2) of the ST Act, in order to be supported to the extent necessary for a special resolution:
•the resolution must be supported by votes having a value of not less than 50% of the aggregate unit entitlement of the lots in the scheme and of the proprietors of not less than 50% of the lots in the scheme; and
•the votes against the resolution must not have a value of 25% or more of the aggregate unit entitlement of the lots in the scheme or must not be cast by the proprietors of 25% or more of the lots in the scheme.
As noted earlier, in this case, the resolution was supported by votes having a value of 79% of the aggregate unit entitlement of the lots in the scheme and of the proprietors of 80% of the lots in the scheme. As also noted earlier, the votes against the resolution have a value of 21% of the aggregate unit entitlement of the lots in the scheme and were cast by the proprietors of 20% of the lots in the scheme.
The third requirement or condition precedent is that the applicant seeking the declaration must be 'a person included in the majority in favour of the resolution'. Ebony Nominees is such a person.
As each of the three requirements or conditions precedent to the availability of a discretion as to whether or not to make a declaration are satisfied in this case, a discretion arises and may be exercised.
The discretion conferred by s 51(1) of the ST Act is broad and unconfined. The statute does not prescribe any particular matters for consideration in the exercise of the discretion. However, considerations or factors that properly guide the exercise of the discretion may be inferred from s 51 and the nature of the jurisdiction being exercised.
In McHattie v Tuscan Investments Pty Ltd (1997) 18 SR (WA) 231, in determining an application for a declaration under s 51(1) of the ST Act, Wisbey DCJ observed and held as follows (234 – 235):
It is clear that the Parliament had in mind that in a situation such as this, the court could and should intervene to overcome an impasse between the proprietors. Unfortunately, s 51 does not indicate the principles that condition the exercise of the discretion contained therein. Without attempting to limit the applicable principles, I am of the view that the court must have regard to:
(a)The extent of the majority in favour of the resolution.
(b)The benefit to the proprietors, occasioned by the resolution.
(c)The detriment to the proprietors generally, both immediately and prospectively, by the resolution.
(d)Any detriment flowing particularly to any proprietor, and more particularly to any proprietor opposing the resolution; and whether the resolution will impinge upon that proprietor to the extent that it could be said to derogate from those proprietary rights which were in the proprietors' [sic] contemplation at the time of the purchase by him of a unit.
The four considerations or factors stated by Wisbey DCJ to guide the exercise of the court's discretion under s 51 of the ST Act have been applied in subsequent judgments of this court; see, for example, Large v Janus [2003] WADC 262; Clark v Weinert [2006] WADC 129.
I respectively adopt the four matters stated by Wisbey DCJ as considerations which guide the exercise of the court's discretion under s 51 of the ST Act.
However, as his Honour recognised, the considerations which he articulated in McHattie are not exhaustive. The list of matters for consideration is not closed. Other considerations may be relevant in the circumstances of a particular case.
In this case, I consider that there are two further relevant matters for consideration in the exercise of the court's discretion. The first is that the resolution is consistent with the informal, historical allocation and exclusive use of car parking bays which has operated (although with a degree of contention) at the site throughout the lifetime of the Subiaco Village development. The second consideration is whether the impasse between the proprietors of strata lots in relation to exclusive use of car parking bays is likely to be resolved in any other way than in terms of the resolution.

Should a declaration be made?

I will now address each of the relevant considerations which guide the exercise of the court's discretion in the circumstance of this case and then balance my findings in relation to these considerations in the overall exercise of discretion.

The extent of the majority in favour of the resolution

As noted earlier, the majority in favour of the 2014 resolution is 79% of the aggregate unit entitlement of the lots in the scheme and the proprietors of 80% of the lots in the scheme. Thus, there is a substantial majority in favour of the resolution.

The benefit to the proprietors occasioned by the resolution

Ebony Nominees submits, and the respondents do not dispute, that the resolution would provide the following benefits to all proprietors in the strata plan:
(a)provide certainty as to the exclusive use of the car bays in question;
(b)resolve the ongoing impasse that has existed between proprietors of Lots on Strata Plan 17651 for many years which has proven to be expensive and time consuming; and
(c)allow proprietors/proposed buyers of Lots on Strata Plan certainty as to what is being bought/sold when selling/buying a Lot.
I find that the resolution would benefit the proprietors in the strata plan in each of these respects.

The detriment to the proprietors generally, both immediately and prospectively, by the resolution

Ebony Nominees submits that there would be no detriment to the proprietors generally, both immediately and prospectively, by the resolution, because 'if circumstances change in the future, by‑laws are able to be amended in the same manner as the present Application'.
In contrast, the first respondents contend that the resolution would involve detriment to the proprietors generally, particularly prospectively, because it would both entrench the current allocation of approximately 100 car bays for public parking use and 100 car bays for use by occupants of the strata lots and their customers, and the particular nominated allocations of car parking bays to the proprietors of nominated strata lots. The first respondents submit that 'car parking requirements are dynamic in a commercial context', in that land uses or the commercial occupant of lots may change, with consequent changes in the car parking generation of the relevant lot. They submit that, if there is to be a by‑law conferring exclusive use of car bays, it should incorporate 'flexibility', and in particular an annual review mechanism.
I am not persuaded by the first respondents' evidence and submissions that there would be detriment to the proprietors generally, even prospectively, by the resolution. If the proprietors generally are ultimately of the view that the allocation of 100 car bays for public car parking use is excessive, because additional car parking bays are required for the exclusive use of the occupants of the strata lots and their customers, then, at a time when the commercial arrangements with Wilson Parking are able to be reviewed, the proprietors generally can reduce the number of car bays available for public car parking use, or indeed allocate no bays for that use.
Furthermore, I am not persuaded that allocating exclusive use of particular nominated car parking bays to the proprietors of nominated strata lots involves detriment to the proprietors generally, even prospectively, because of the dynamic nature of car parking requirements in a commercial context. While the land use or identity of an occupant of a particular lot may change over time, with consequent changes in car parking generation by that lot, there is no evidence before the court to the effect that exclusive allocation of car parking bays through a by‑law of a strata scheme, or without an annual review mechanism in such a by-law, has proven to be problematic, much less detrimental, to the proprietors of strata lots generally.
Mr Newcombe considers that while the allocation of car bays in the inaugural AGM resolution 'was most likely made on the basis of proper considerations to do with tenant and/or customer requirements associated with the use of each lot', the original allocation 'is no longer appropriate', especially because of the subdivision of one of the strata lots into four.
However, the subdivision of lot 9 occurred 24 years ago and the car parking allocations and exclusive use of car parking bays at the site has remained unchanged. Furthermore, although I note that Mr Eftos, a valuer, considered in 2008 that different allocations (and an increased overall number) of car parking bays for the strata lots was 'required', no town planning or traffic engineering evidence was presented to the court to the effect that the proposed allocations for exclusive use of car parking bays in the resolution (which has also operated historically) is in fact no longer appropriate, having regard to the traffic generation of the respective land uses operating at the site.
Finally, as Ebony Nominees submits, if the proprietors generally consider that there is a need to re‑allocate car bays in the future, then the proprietors generally may amend the by‑law.

Any detriment flowing particularly to any proprietor, and more particularly to any proprietor opposing the resolution; and whether the resolution would impinge upon that proprietor to the extent that it could be said to derogate from those proprietary rights which were in the proprietor's contemplation at the time of the purchase by the proprietor of a unit

Mr Peter George, a director and secretary of Ebony Nominees, gave evidence that:
I verily believe that the proprietors of the Lots on Strata Plan 17651 have purchased their Lots on the basis of the exclusive use of car bays as set out in [a document recording the allocation of exclusive use of car bays in the inaugural AGM resolution].
I also verily believe that the exclusive use of car bays for the proprietors of the specific Lots on Strata Plan 17651 was intended by the original developer of Strata Plan 17651 and I further believe that the purchase price paid for Lots on Strata Plan 17651 by subsequent proprietors reflect the number of exclusive use car bays attached to each Lot on Strata Plan 17651.
This evidence was not questioned or contradicted, and I accept it.
As noted earlier, Mr Newcombe gave evidence that at the time he became a co‑owner of lot 3 in the strata plan, he was 'made aware of the allocation of car bays on an exclusive use basis'. He said that he spoke with the selling agent at the time and complained that the allocation was 'unfair'. Mr Newcombe gave evidence that the agent agreed with him and that he was told that the arrangement was 'temporary' and 'could be changed'.
However, accepting this evidence from Mr Newcombe, and also accepting his evidence, which is borne out in AGM minutes, that 'there has always been a degree of contention regarding the exclusive use of the car bays', I find that the purchasers of strata lots in the strata plan have purchased their lots 'on the basis of the exclusive use of car bays' as described in Mr George's evidence. Notwithstanding 'a degree of contention regarding the exclusive use of the car bays' and the fact that the inaugural AGM resolution has never had lawful effect in consequence of the failure of the strata company to lodge a notice of the by‑law with the Registrar of Titles 'not later than 3 months after the passing of the resolution' in 1989 (contrary to s 42(4)(a) of the ST Act), in light of Mr George's evidence and the agreed position between the parties that, from the initial occupation of the Subiaco Village development to date, the 100 car bays available for exclusive use of the occupants of the strata lots and their customers have been informally allocated in terms of the 1989 resolution, I find that it is more probable than not that the proprietors of lots in the strata plan have purchased their lots on the basis of the exclusive use of car bays as set out in the 1989 resolution and that the purchase price paid for lots in the strata plan has reflected the number of exclusive use bays as allocated in the 1989 resolution.
I therefore find that the 2014 resolution will not, adapting Wisbey DCJ's words in McHattie,
impinge upon [any proprietor opposing the resolution] to the extent that it could be said to derogate from those proprietary rights which were in the [proprietor's] contemplation at the time of the purchase by [the proprietor] of a unit.
However, I am satisfied that there is an element of detriment from the resolution for the proprietors opposing the resolution, because, as the first respondents submit, there is evidence, in the form of Mr Eftos' report, of an independent recommendation to the Owners of Subiaco Village for a re‑assessment of unit entitlements 'taking into account the strata re‑subdivision and incorporation of parking bays with strata lots', and an associated recommendation that an increased number of car parking bays is 'required' for each of the four strata lots owned by the first respondents. As found earlier, the effect of Mr Eftos' recommendation, if implemented, would be an increased number of car bays allocated to each of the lots owned by the first respondents over the 2014 AGM resolution (after the 'pro‑rata' change is made to reflect the availability of 100, rather than 147, car bays for the exclusive use of the occupants of the strata lots and their customers).
Furthermore, as the first respondents point out, six lots in the strata plan, the proprietors of which voted in favour of the 2014 resolution, would each be allocated a greater number of car parking bays for exclusive use under the 2014 resolution than the 'pro‑rata', 'required' allocation according to the report by Mr Eftos (lot 5 – four car parking bays, rather than two; lot 12 – 15 car parking bays, rather than eight; lot 14 – nine car parking bays, rather than two; lot 15 – 10 car parking bays, rather than four; lot 16 – four car parking bays rather than two; and lot 17 – 22 car parking bays rather than 14). As the first respondents submit, given that these six lots have a value of 33.5% of the aggregate unit entitlement of the lots in the scheme and constitute 30% of the lots in the scheme, in practical terms, if the declaration sought by Ebony Nominees is granted, then the proprietors of these lots would have sufficient aggregate unit entitlement and also constitute a sufficient percentage of lots to prevent support necessary for a special resolution (under s 3B(2) of the ST Act), and certainly a resolution without dissent, from being passed in the future for the purposes of amendment of the by‑law conferring exclusive use of car parking bays within the strata plan.
However, in my view, the degree of detriment to the first respondents cannot be characterised as greater than minimal, given that, although Mr Eftos' valuation report was prepared for the Owners of Subiaco Village, its recommendations have not been adopted by the strata company and, given the proposed reduction in car parking bays recommended by Mr Eftos in comparison to the informal, historical allocation for a number of strata lots (and the proposed changes to unit entitlements), it is highly unlikely that the Owners of Subiaco Village would resolve to adopt Mr Eftos' recommendations.

Other considerations

In my view, there are two further considerations which favour the making of the declaration sought by Ebony Nominees in the circumstances of this case.
First, the resolution is consistent with the informal, historical allocation and exclusive use of car parking bays at the site. In my view, it is significant that, notwithstanding the lack of legal effect of the 1989 resolution and the 'degree of contention regarding the exclusive use of the car bays', the 100 car bays available for exclusive use by occupants of the strata lots and their customers have been informally allocated on the basis of the 1989 resolution (and the 2014 resolution) since the initial occupation of Subiaco Village. The 2014 resolution would formalise a situation which has existed informally for a long time and throughout the lifetime of the development.
Secondly, as Ebony Nominees submits, having regard to the impasse that had been reached at a number of AGMs and the substantial majority for the resolution at the 2014 AGM, it is unlikely that the issue of exclusive allocation of car parking bays would be resolved by the Owners of Subiaco Village in any other manner than to put in place and reflect what has been in existence on an informal basis since 1989.

Exercise of discretion

I must balance each of the foregoing findings in relation to the relevant considerations in the exercise of discretion. In my view, these considerations are overwhelmingly in favour of making the declaration sought by Ebony Nominees in the circumstances of this case.
There is a substantial majority in favour of the resolution.
There would be significant benefits to the proprietors occasioned by the resolution.
I am not satisfied that there is any detriment to the proprietors generally, both immediately and prospectively, by the resolution.
Properly assessed in context, the degree of detriment flowing to the proprietors opposing the resolution cannot be characterised as greater than minimal; and the resolution will not impinge upon the proprietors opposing the resolution to the extent that it could be said to derogate from those proprietary rights which were in any of those proprietors' contemplation at the time of the purchase of any of their units.
The resolution will formalise an informal arrangement which has been in place for a long time and throughout the lifetime of the Subiaco Village development.
It is unlikely that the issue of exclusive use of car parking bays for occupants of the strata lots and their customers will be resolved in any way other than the resolution.
In these circumstances, I consider that the declaration sought by Ebony Nominees should be made by the court.