EFFICIENT BUILDING TEAM PTY LTD and PERTH RECRUITMENT SERVICES PTY LTD - [2024] WASAT 25

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   EFFICIENT BUILDING TEAM PTY LTD and PERTH RECRUITMENT SERVICES PTY LTD [2024] WASAT 25
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   11 DECEMBER 2023 and 12 DECEMBER 2023
LAST SUBMISSIONS FILED ON 15 JANUARY 2024

DELIVERED          :   10 APRIL 2024
FILE NO/S:   CC 1696 of 2022
BETWEEN:   EFFICIENT BUILDING TEAM PTY LTD
Applicant
AND
PERTH RECRUITMENT SERVICES PTY LTD
Respondent

Catchwords:

Strata Titles Act 1985 (WA) - Alleged contravention of scheme conduct by-laws - Enforcement of scheme by-laws - Exercise of Tribunal's statutory discretionary powers to make orders - Turns on own facts

Legislation:

Strata Titles Act 1985 (WA), s 43, s 47(3), s 47(3)(a), s 47(4), s 47(4)(a), s 47(5), s 47(5)(b), s 90, s 200, s 200(7), Div 1, Pt 8

Result:

Application partly successful
Orders made

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	In Person

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [200] HCA 47; (2000) 203 CLR 194
Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2023] WASAT 37
Efficient Building Team Pty Ltd and Rosskeen Pty Ltd [2021] WASAT 157
Efficient Building Team Pty Ltd and The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 [2021] WASAT 158
Kruger & Ors v The Commonwealth of Australia (1997) 190 CLR 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 and Efficient Building Team Pty Ltd [2023] WASAT 3
Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In Greek mythology, the saga of Sisyphus personifies relentless and never-ending toil – condemned by the gods to an eternity of pushing a massive boulder up a steep hill, only to watch it roll back down again as he nears the summit.
The parties must feel the Sisyphean ordeal of seemingly endless applications to the Tribunal under the Strata Titles Act 1985 (WA) (ST Act). This is because, since 2020, the applicant, Efficient Building Team Pty Ltd (Efficient), who owns Lot 8 on the relevant four-lot strata plan in Fremantle, and the respondent, Perth Recruitment Services Pty Ltd (Perth Recruitment), who owns Lot 7, have made numerous applications to the Tribunal under the ST Act. To date, the Tribunal has published the following decisions:
•Efficient Building Team Pty Ltd and Rosskeen Pty Ltd [2021] WASAT 157 (First Decision);
•Efficient Building Team Pty Ltd and The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 [2021] WASAT 158 (Second Decision);
•The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 and Efficient Building Team Pty Ltd [2023] WASAT 3 (Third Decision); and
•Efficient Building Team…

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: [2024] WASAT 25
Decision Date: 10 APRIL 2024

CaseChat Overview and Summary

Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd were involved in a dispute before the State Administrative Tribunal of Western Australia. Efficient, the applicant, alleged that Perth Recruitment, the respondent, had contravened various scheme conduct by-laws under the Strata Titles Act 1985 (WA). Efficient sought orders to compel Perth Recruitment to comply with the by-laws, including removing vehicles from common property, installing barriers to prevent parking, and removing signs encouraging parking in unauthorized areas. Perth Recruitment filed an application to strike out Efficient's claims and objected to any amendments to the orders sought by Efficient. The Tribunal had to decide whether to strike out certain claims, grant leave to amend the application, and determine the appropriate orders to resolve the dispute.

The primary legal issues involved the Tribunal's discretionary powers under sections 47(5) and 200 of the State Administrative Tribunal Act 2004 (WA). The Tribunal had to assess whether its discretion to make orders for contraventions of by-laws and to resolve disputes was limited by any mandatory considerations. The court referenced previous cases, such as Minister for Immigration and Citizenship v Li and Kruger & Ors v The Commonwealth of Australia, which established that while statutory discretions are broad, they must be exercised reasonably and within the scope of the statutory scheme. The Tribunal needed to ensure that its decisions were legally reasonable and aligned with the purpose of the Strata Titles Act.

In its decision, the Tribunal concluded that the discretion conferred by sections 47(5) and 200 of the State Administrative Tribunal Act was not limited by mandatory considerations but was constrained by the need for legal reasonableness. The Tribunal determined that it must exercise its powers within the scope and purpose of the statutory scheme, which includes finding facts and considering all relevant matters. The Tribunal granted leave for Efficient to amend its application, modifying certain orders to better reflect the relief sought. The Tribunal struck out claims for specific contraventions of by-laws but left other claims to be determined at a final hearing. The matter was adjourned to schedule a final hearing for the remaining claims.

The final orders required Perth Recruitment to cease parking and permit parking on common property, remove signs encouraging unauthorized parking, install barriers to prevent parking in unauthorized areas, remove waste items from common property, and remove a carport within 45 days. The Tribunal's decision underscored the importance of exercising statutory discretions reasonably and within the confines of the relevant statutory scheme.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Shortly after the application was made, Perth Recruitment made its application to the Tribunal seeking to strike out Efficient's entire application. Following consideration of the written and oral submissions made by the parties, the Tribunal made the following orders on 22 May 2023:[1]1.Pursuant to s 47(1) of the State Administrative Tribunal Act 2004 (WA), the proceeding is struck out and is at an end in respect of each of the grounds based on the claim for contravention of conduct by-laws 1(1), 1(2), 2(a), 2(b), 2(c) and 2(d).2.For avoidance of doubt the grounds based on the claims for breach of conduct by-laws 2(e), 6, 7(b) and 13 are not struck out and those claims are to be determined by the Tribunal at a final hearing.3.The matter is adjourned to a further directions hearing at 9:30 am on 14 June 2023 to program the claim for breach of conduct by-laws 2(e), 6, 7(b) and 13 to a final hearing.[1] Fourth Decision at [90]. Subsequently, on 12 June 2023, Efficient filed with the Tribunal and provided to Perth Recruitment a set of proposed amended orders it seeks in this proceeding. At the directions hearing on 14 June 2023, Perth Recruitment objected to any amendment to the original orders sought by Efficient. Consequently, at that directions hearing, the Tribunal made the following orders:1.By 8 September 2023, the respondent must file with the Tribunal and give to the applicant written submissions in objection to any amendment to the orders sought by the applicant. 2.By 29 September 2023, the applicant must file with the Tribunal and give to the respondent written submissions in response to the applicant's objection (see order 1 above). 3.The matter is adjourned to a further directions hearing at 9 am on 9 October 2023 for a duration of one hour to determine if leave will be granted by the Tribunal to the applicant to amend the orders sought per the document filed by the applicant on 12 June 2023. On 9 October 2023, after consideration of the written submissions and hearing from the parties, the Tribunal made the following orders in regard to Efficient's application to amend the orders it seeks in this proceeding:1.The applicant is given leave to amend the application and the application is amended by substituting orders 5 and 7 only as set out in the application dated 18 November 2022 with proposed orders 5 and 7 which are set out in the document filed with the Tribunal on 12 June 2023 titled 'Submissions by Efficient Building Team Pty Ltd, Applicant, to amend orders sought'. 2.For avoidance of doubt, leave is not granted to the applicant for all the other proposed orders sought. The application now reflects the following orders sought by the applicant in these proceedings: (i)Perth Recruitment Services Pty Ltd [the respondent] shall cease parking and permitting the parking of vehicles on the lot that overhang into the common property. (ii)Perth Recruitment Services Pty Ltd shall remove all 'cues' that invite, encourage or suggest to park on the rear of lot 7 other than in a car parking space for which the City of Fremantle has issued development approval. (iii)Perth Recruitment Services Pty Ltd shall install vehicle barriers such as fence, bollards or kerbing to prevent vehicles parking on the rear of lot 7 other than in a car parking space for which the City of Fremantle has issued development approval. (iv)Perth Recruitment Services Pty Ltd shall remove the carport over, and signage that suggest that any part of the lot be used for parking other than a car parking space for which the City of Fremantle has issued development approval. (v)Perth Recruitment Services Pty Ltd shall remove waste items deposited or stored on the part lot 7 or the common property and shall not deposit or store waste materials or rubbish on the common property or the part of lot 7. (vi)Perth Recruitment Services Pty Ltd remove the sign relating to parking that is affixed to the rear wall of the lot. (vii)Within 45 days of this order Perth Recruitment Services Pty Ltd shall remove the carport installed on lot 7.

Ratio Decidendi

Legal Principle Established

The discretion conferred by s 47(5) of the ST Act to make an order for contravention of the scheme by-laws is not limited by any mandatory considerations. The same applies in relation to s 200 of the ST Act, that is, the discretion to make an order to resolve the dispute or proceeding under s 200 of the ST Act is not limited by any mandatory consideration. However, that is not to say that the statutory power is not without limitation. As stated by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [23] every statutory discretion, however broad, is constrained by law. Legal reasonableness provides the boundaries within which a decision-maker such as the Tribunal has a genuine free discretion: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at [505] and Li at [23]. To determine the boundaries of the statutory discretionary power, regard must be had to the scope, subject matter and purpose of the statutory scheme that creates and confers on the Tribunal a discretion to make an order: Li at [67]. The scope and purpose of the ST Act provides limits on the exercise of the statutory power by the Tribunal. By its long title, the ST Act is to provide for, among other related purposes, for the subdivision of land by strata titles schemes, the creation of strata titles and the governance and operation of strata titles schemes. The Tribunal's statutory task, as revealed by a consideration of the ST Act as a whole and, in particular, s 47(5) of the ST Act is that if the Tribunal finds that a person has contravened a scheme by-law then the Tribunal may make an order to require the person to take specific action or to refrain from taking specific action in order to comply with the ST Act and the by-laws. Therefore, it follows that in making an order under s 47(5) of the ST Act, the Tribunal must determine which of the scheme by-laws the person is in contravention of. In other words, the Tribunal must make findings of fact. In making the findings, the Tribunal is obliged to have regard to any matters relevant to forming the requisite opinion prescribed by s 47(5) of the ST Act. Importantly, in exercising its statutory powers, the Tribunal must do so reasonably: Li at [23]. The same was said in the earlier decision of Kruger & Ors v The Commonwealth of Australia (1997) 190 CLR 1 where Brennan CJ stated at [36]:[W]hen a discretionary power is statutorily confined on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised[.] In other words, the statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably. Sections 47(5) and s 200 of the ST Act is to be construed accordingly. If the Tribunal makes findings of fact that the person has contravened the scheme by-laws, then the Tribunal in making its decision as to whether or not to exercise its statutory discretionary power to make an order, must ultimately take all considerations into account.