EFFICIENT BUILDING TEAM PTY LTD and PERTH RECRUITMENT SERVICES PTY LTD - [2023] WASAT 37

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   EFFICIENT BUILDING TEAM PTY LTD and PERTH RECRUITMENT SERVICES PTY LTD [2023] WASAT 37
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   27 APRIL 2023
DELIVERED          :   22 MAY 2023
FILE NO/S:   CC 1696 of 2022
BETWEEN:   EFFICIENT BUILDING TEAM PTY LTD
Applicant
AND
PERTH RECRUITMENT SERVICES PTY LTD
Respondent

Catchwords:

Application to strike out or dismiss proceeding commenced under the Strata Titles Act 1985 (WA) - Applicable principles under s 47 and s 48 of the State Administrative Tribunal Act 2004 (WA) - Whether applicant has standing - Alleged contravention of scheme conduct by-laws - Turns on own facts

Legislation:

State Administrative Tribunal Act 2004 (WA), s 9, s 46(1), s 46(2), s 47, s 47(1), s 47(1)(a), s 48, s 49, s 60(2)
Strata Titles Act 1985 (WA), s 47(3), s 47(2), s 47(3), s 47(4), s 47(4)(b), s 47(5), s 90, s 197(4), s 198(5), Pt 7, Div 2

Result:

Grounds based on claim for breach of conduct by-laws 1(1), 1(2), 2(a), 2(b), 2(c) and 2(d) struck out

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141
Cocks Macnish & Anor v Biundo [2004] WASCA 194
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
Ellis and Director General of the Department of Transport [2011] WASAT 142
Laurent and Commissioner of Police [2009] WASAT 254
Legal Profession Complaints Committee and Khosa [2021] WASAT 64
The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 and Efficient Building Team Pty Ltd [2023] WASAT 3
The Owners of Del Mar Strata Plan 53989 and Dart Enterprises Pty Ltd [2020] WASAT 9

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

There is a long background to the present proceedings.
Since 2020 there has been eight proceedings before the Tribunal, each involving some or all of the owners of the four lot strata scheme located in Fremantle (strata scheme). Brief details of the eight proceedings are provided below at paragraph [8]. As stated in the most recent published decision of the Tribunal in relation to this strata scheme, it is unfortunate that the individuals concerned in the proceedings before the Tribunal have been in dispute about many things concerning the strata scheme and that the relationships have continued to deteriorate.
The relevant strata scheme was created by the registration of strata plan 6413 on 12 December 1978 (strata plan).
In the current proceeding CC 1696 of 2022, on 18 November 2022, the applicant, Efficient Building Team Pty Ltd (Efficient) who owns Lot 8 in the strata scheme, made an application to the Tribunal under s 47(3) of the Strata Titles Act 1985

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: [2023] WASAT 37
Decision Date: 22 MAY 2023

CaseChat Overview and Summary

Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd were the parties involved in a dispute which was heard by the State Administrative Tribunal of Western Australia. The dispute arose under the Strata Titles Act 1985 (WA) and involved an application by Efficient to strike out or dismiss the proceeding commenced by Perth Recruitment. The central issue was whether Efficient had standing to bring the application and if the alleged contravention of the strata scheme conduct by-laws was valid. Specifically, Efficient alleged that Perth Recruitment had made an alteration to the structure of Lot 7 by installing a carport without providing the required notice to the strata company, thereby contravening by-law 13. Efficient sought an order for the removal of the carport. Perth Recruitment argued that no formal notice had been given for similar additions over the past 16 years and that the City had approved the carport. The court had to determine if Efficient had standing to bring the application and if the alleged contravention of by-law 13 was valid.

The court examined the applicable principles under sections 47 and 48 of the State Administrative Tribunal Act 2004 (WA) to determine whether Efficient had standing and if the alleged contravention of by-law 13 was valid. The court noted that by-law 13 requires an owner to obtain written approval from the strata company at least 14 days prior to starting any alteration to a lot, and that the alteration must be permitted by the Strata Titles Act. Efficient's claim that Perth Recruitment contravened by-law 13 was considered to proceed to hearing to determine if Perth Recruitment had contravened by-law 13. The court found that Efficient had standing to make its application to the Tribunal seeking orders to resolve the current conduct by-law enforcement proceeding. The court also found that the alleged breach of by-law 13 had not been previously determined by the Tribunal in relation to this strata complex.

The court concluded that Efficient's claim that Perth Recruitment contravened by-law 13 was to proceed to hearing to determine if Perth Recruitment had contravened by-law 13. The court struck out 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) as they had been heard and determined previously by the Tribunal. The court determined that Efficient had standing to bring the application and that the alleged contravention of by-law 13 was valid. Consequently, 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) were struck out under section 47(1) of the SAT Act. The court ordered that the matter proceed to a final hearing on the grounds claimed in respect of conduct by-law 13.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Conduct by-law 13 provides:13.Notice of alteration to lotAn owner of a lot must not alter or permit the alteration of the structure of the lot except as may be permitted and provided for under the Act and the by‑laws and in any event must not alter the structure of the lot without giving to the strata company, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration. Properly construed, conduct by-law 13 imposes an obligation on an owner to obtain the written approval of the strata company at least 14 days prior to starting any alteration to a lot and that the alteration must be an alteration permitted by the ST Act. Efficient allege that Perth Recruitment made an alteration to the structure on Lot 7 by installing a carport without first providing notice to the strata company and that the carport has resulted in vehicles parking in a manner that breaches the by-laws. Efficient seeks an order from the Tribunal for the carport on Lot 7 be removed. Perth Recruitment state there has never been any formal notice given for any addition by any owner over the last 16 years for the removal of carports, for the installation of dividing fences or of new carports and for building renovations. Further, Perth Recruitment say that the City has in any event approved the carport. Also, it is the position of Perth Recruitment that vehicles have parked on Lot 7 in the same manner before and the carport was installed on Lot 7. It is common ground that the alleged breach of conduct by-law 13 has not been previously determined by the Tribunal in relation to this strata complex. For reasons similar to the alleged breach of conduct by-law 2(e) (see above at [66]) Efficient's claim that Perth Recruitment contravened bylaw 13 is to proceed to hearing to determine if Perth Recruitment has contravened conduct by-law 13. I am satisfied that Efficient has standing to make its application to the Tribunal seeking orders to resolve the current conduct by-law enforcement proceeding. It issued a lengthy 17-page written notice to Perth Recruitment on 14 November 2022 setting out the alleged breaches of the conduct by-laws, the information on which it relies and a statement explaining the effect of s 47 of the ST Act. Efficient desire to ventilate matters concerning the strata scheme conduct bylaws including motor vehicle and vehicle parking overhang on to the common property. However, apart from a change in the circumstances of the strata complex where part Lot 7 now has a shed and permanent storage of two large bins which Efficient alleges causes Perth Recruitment to contravene conduct by-law 2(e), it seems likely that Perth Recruitment would suffer substantial prejudice if I was inclined to permit Efficient to proceed to a final hearing on the grounds claimed in respect of conduct by-laws 1(1), 1(2), 2(a), 2(b), 2(c) and 2(d) as they have been heard and determined previously by the Tribunal. Consequently, for the reasons given, 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) are struck out under s 47(1) of the SAT Act.