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 (WA) (ST Act) seeking orders against the respondent, Perth Recruitment Services Pty Ltd (Perth Recruitment), the owner of Lot 7 in the strata scheme, for the enforcement of the scheme by-laws in circumstances where Efficient alleges that Perth Recruitment have contravened the strata scheme's conduct by-laws 1(1) and 1(2), 2(a), 2(b), 2(c), 2(d) and 2(e), 6, 7(b) and 13 (conduct by-laws).
On 6 December 2022, at the first directions hearings before the Tribunal, Perth Recruitment sought to have the current proceedings, or part thereof, struck out or dismissed as being frivolous, vexatious, misconceived or lacking in substance (strike out application). At that directions hearing, the Tribunal made orders requiring Perth Recruitment to file a document setting out the basis for which it proposes that the matters, the subject of the application by Efficient, had already been determined by the Tribunal and should be struck out together with any documents on which Perth Recruitment intends to rely. Further, the Tribunal ordered for Efficient to provide a response to Perth Recruitment's strike out application together with any documents on which it intends to rely.
In line with the Tribunal's objectives, to act as speedily and with little formality as is practical and to minimise costs to the parties (s 9 of the State Administrative Tribunal Act 2004 (WA)), at a further direction hearing on 24 March 2023, Efficient was ordered to file written submissions setting out the basis for which it says it has standing to make the current application under s 47(3) read with s 47(4) of the ST Act together with any documents on which it relies (issue of standing). Perth Recruitment was ordered to provide its written response.
Perth Recruitment requested that the parties be given the opportunity to make oral submissions to the Tribunal on both the strike out application and the issue of standing. I heard both the strike out application and the issue of standing on 27 April 2023 following which I reserved my decision.
For the purposes of determining the issue of standing and the strike out application, I have carefully considered the following documents filed with the Tribunal by the parties, the final orders and decisions published by the Tribunal concerning the strata scheme as well as considering the oral submissions made by the parties at hearing on 27 April 2023:
(a)Efficient's application (proceeding CC 1696 of 2022) filed on 18 November 2022 and the attachments to the application including orders sought and grounds;
(b)Perth Recruitment's strike out application;
(c)Perth Recruitment's bundle of documents filed on 8 December 2022 including submissions;
(d)Efficient's final response to the strike out application filed on 21 December 2022;
(e)Efficient's 'Notice of Contravention' dated 14 November 2022 filed on 21 March 2023;
(f)Efficient's written submissions on the issue of standing filed on 30 March 2023;
(g)Perth Recruitment's response to the issue of standing filed on 18 April 2023;
(h)Final order made by the Tribunal on 6 June 2020 by consent of the parties in proceeding CC 644 of 2020 Efficient and Anthony Elton Anderson (Mr Anderson) and Perth Recruitment;
(i)Final order made by the Tribunal on 24 September 2020 in proceeding CC 735 of 2020 Efficient and Perth Recruitment;
(j)Final order made by the Tribunal on 8 December 2020 in proceeding CC 951 of 2020 Efficient and Perth Recruitment and Anderson and Rosskeen Pty Ltd;
(k)Efficient Building Team Pty Ltd and Rosskeen Pty Ltd [2021] WASAT 157 published on 13 December 2021 for proceeding CC 1682 of 2020;
(l)Efficient Building Team Pty Ltd and The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 [2021] WASAT 158 published on 13 December 2021 for proceeding CC 1672 of 2021 and proceeding CC 1742 of 2020; and
(m)The Owners of 25, 27, 29, 31 Parry Street Fremantle Strata Plan 6413 and Efficient Building Team Pty Ltd [2023] WASAT 3 published on 2 February 2023 for proceeding CC 1960 of 2021 and proceeding CC 2028 of 2021.
For the reasons which I will explain, I find that Efficient, as a lot owner in the strata scheme has standing to make the application to the Tribunal under s 47(3) read with s 47(4) of the ST Act. In regards to the strike out application, Perth Recruitment is successful in regards to its application to strike out Efficient's claim for breach of conduct bylaws 1(1), 1(2), 2(a), 2(b), 2(c) and 2(d). Those grounds are struck out. The other grounds remain on foot, that is Efficient's claim that Perth Recruitment breached conduct by-laws 2(e), 6, 7(b) and 13 remain on foot and are to be programmed through to a final hearing.

Efficient's application

In its application, in relation to parking of motor vehicles, Efficient alleges that Perth Recruitment breached the conduct by-laws by:[1]
(a)failing to take all reasonable steps to ensure that it and its visitors comply with the by-laws relating to the parking of motor vehicles and is actively encouraging parking on Lot 7 resulting in overhang onto the common property in breach of the by-laws;
(b)permitting motor vehicles to park on the common property to the extent they overhang the Lot 7 boundary onto the common property contrary to any written approval of the strata company;
(c)permitting vehicles parked on Lot 7 to overhang onto the common property due to the lack of space on Lot 7 to meet the minimum required dimension for parking spaces and this unreasonably interferes with the use and enjoyment of common property by vehicles visiting Lot 8;
(d)using the rear of Lot 7 as a parking area for which there is insufficient space to meet the minimum required dimensions for parking spaces with the result that parked vehicles overhang the common property causing a nuisance to vehicles using the common property as circulation roadway and parking aisles when visiting and departing Lot 8;
(e)not taking all reasonable steps to prevent visitors to Lot 7 from using the rear of Lot 7 as a parking area for which there is insufficient space to meet the minimum required dimensions for parking spaces with the result that parked vehicles overhang the common property thereby interfering in the peaceful enjoyment by Efficient, occupiers and visitors to Lot 8;
(f)permitting motor vehicles to park on the rear of Lot 7 overhanging onto the common property on a daily basis and is thereby obstructing the lawful use of the common property as circulation roadway and as a parking aisle; and
(g)permitting vehicles to park on the rear of Lot 7 overhang on the common property on a daily basis and is thereby impeding and hindering vehicles using the six metre wide accessway as circulation roadway and as a parking aisle.
[1] Efficient's application dated 18 November 2022.
Efficient seeks the following four orders under s 47(5) of the ST Act for each of the alleged breaches of conduct by-laws 1(1), 1(2), 2(a), 2(b), 2(c), 2(d) and 2(e): [2]
1.[Perth Recruitment] shall cease parking and permitting the parking of vehicles on the lot that overhang into the common property.
2.[Perth Recruitment] 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.
3.[Perth Recruitment] 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.
4.[Perth Recruitment] 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.
[2] Ibid.
Further, in its application, Efficient alleges that Perth Recruitment has been and continues to store rubbish on the common property between the shed installed on part Lot 7 and the brick wall alongside the rear boundary of the parcel. Efficient contends that in doing so, Perth Recruitment has breached conduct by-law 6.
Efficient seeks the following order under s 47(5) of the ST Act in respect of the alleged breach of conduct by-law 6:[3]
5.Perth Recruitment […] shall remove waste items deposited, stored or dumped on the common property behind the shed on its part lot and between the shed and the brick wall of the neighbouring property to the west.
[3] Ibid.
Next, in its application, Efficient alleges that Perth Recruitment has affixed a sign to the rear of its building on Lot 7 and thereby encouraging and inviting the parking of motor vehicles on the rear of Lot 7 without the consent of the strata company in breach of conduct by-law 7(b).
Efficient seeks the following order under s 47(5) of the ST Act in respect of the alleged breach of conduct by-law 7(b):[4]
6.Perth Recruitment […] remove the sign relating to parking that is affixed to the rear wall of the lot.
[4] Ibid.
Finally, in its application, Efficient alleges that Perth Recruitment made a structural alteration to Lot 7 by installing a patio/carport without first providing notice to the strata company and which carport has resulted in motor vehicles parking in a manner that breaches conduct bylaw 13.
Efficient seeks the following order under s 47(5) of the ST Act in respect of the alleged breach of conduct by-law 13:[5]
7.Perth Recruitment […] shall remove the carport installed on lot 7.
[5] Ibid.

Perth Recruitment strike out application

In response to Efficient's application, Perth Recruitment urged the Tribunal to strike out or dismiss the current proceedings CC 1696 of 2022, or part thereof, on the basis that Efficient has again made an application under s 47(3) of the ST Act where it again seeks the same orders on the same grounds in regards to the parking of vehicles on Lot 7 that overhang onto the common property. In support of its position, Perth Recruitment submits that the same issue of vehicle parking on Lot 7 and the overhang onto the common property was raised by Efficient in five previous proceedings before the Tribunal with the following outcomes:
(a)in proceeding CC 644 of 2020 Efficient made an application under s 47(3) of the ST Act seeking an order that Mr Anderson and Perth Recruitment and their respective visitors and employees not park on, or, in a position that encroaches the common property or otherwise obstructs vehicle access and egress from Lot 8 via the common property. The Tribunal made orders by consent of the parties on 19 June 2020 as follows:
The respondents [Mr Anderson and Perth Recruitment] and their visitors and employees shall not park vehicles on the common property, or in a position on the respondents' lots which encroaches on the common property in a manner that obstructs vehicle access and egress for the applicant's [Efficient] lot (Lot 8) via the common property.
(b)in proceeding CC 735 of 2020 where Efficient made a further application under s 47(3) of the ST Act seeking an order that Perth Recruitment and its visitors not park vehicles on Lot 7 in a position that overhangs or encroaches the common property. On 24 September 2020, Efficient withdrew its application and the Tribunal withdrew the proceeding under s 46(1) of the SAT Act;
(c)in proceeding CC 951 of 2020 where Efficient made an application under s 197(4) of the ST Act for the resolution of a scheme dispute concerning vehicle parking and vehicle access. Orders sought by Efficient included requiring the rear boundaries of all lots to be moved to a line five metres offset from the rear boundary of the parcel and that the five metre strip of land between the rear of the private lots to be a common property accessway and that the strata scheme be changed to a survey strata scheme. On 8 December 2020, Efficient withdrew its application and the Tribunal struck out the proceeding under s 46(2) of the SAT Act; and
(d)in proceeding CC 1672 of 2020 where Efficient made a further application under s 197(4) of the ST Act for the resolution of a scheme dispute concerning the parking arrangements and the validity of the new conduct by-law 2(e) dealing with the overhang of parked vehicles on to the common property. Separately, in proceeding CC 1742 of 2020 where Efficient made a further application under s 47(3) of the ST Act alleging the breach of by-laws. Efficient sought orders that the new conduct by-law 2(e) was invalid and that the order by consent in proceeding CC 644 of 2020 be varied or substituted with an order to include the express prohibition of parking of vehicles by Perth Recruitment and Mr Anderson on their respective lots overhanging onto, or encroaching the common property or encroaching the airspace above the common property and an order requiring Perth Recruitment to have vehicles parked, and to take all reasonable steps to ensure that its employees, agents and visitors park wholly within the boundaries of Lot 7 and without encroaching on the common property, overhanging onto the common property or overhanging into the airspace above the common property. On 13 December 2021, the Tribunal made orders, amongst other orders, that the strata company was taken to have passed a resolution without dissent authorising conduct by-law 2(e) and that the orders made by consent in proceeding CC 644 of 2020 were superseded by the orders made in proceedings CC 1672 of 2020 and CC 1742 of 2020.
Perth Recruitment deny all suggestions made by Efficient that Mr Timothy Kullack's vehicle causes a 'pinch point' of 2 metres that obstructs access to Lot 8. Further, Perth Recruitment state that at no time has it revoked the permission granted by it for Efficient and its visitors to drive motor vehicles over part Lot 7 to gain access to and egress from Lot 8.
It is submitted by Perth Recruitment that the other orders sought by Efficient in these proceedings, to install vehicle barriers such as fences, bollards or curbing to prevent vehicles parking on the rear of Lot 7, to remove the sign from the wall of the building on Lot 7 and to remove the carport installed on Lot 7 are 'too ludicrous to entertain or defend given [Perth Recruitment] is parking on [Lot 7] and not overhanging more than one metre into the common property' as permitted by conduct bylaw 2(e).
In relation to the carport installed on Lot 7, Perth Recruitment state that it was approved and authorised by the City of Fremantle (City) as evidenced by Building Permit BP0246/21 and Certificate of design compliance both dated 26 May 2021 and that in any event there has never been any formal notice given for any addition by any lot owner during the past 16 years including for carport removals, dividing fences, new carports and building renovations. Perth Recruitment contend that the parking of motor vehicles on private lots (in its case, Lot 7) is not of concern to the City who have stated that it is a matter for the strata company. Lastly, Perth Recruitment submit that the City, as evidenced by an email dated 28 May 2021, stated that the 'current requirements of Local Planning Scheme 4 for access arrangements to meet the Australian Standards requirements are not generally able to be applied retrospectively to an existing development' and that the City 'has considered and approved developments to the strata complex, such as carports, which rely upon the existing access arrangements' and therefore Efficient's current application before the Tribunal is without merit.
Perth Recruitment concede that the alleged breach of by-law 6 has not previously been dealt with by the Tribunal. However, Perth Recruitment's position is that the cardboard rubbish was removed when space became available in the recycle bin. Efficient assert that the cardboard waste behind the shed appears to have been replaced with discarded timber.
In relation to Efficient seeking to have the 'Private parking' sign removed, Perth Recruitment position is that it has been in place for over 20 years and was moved to its current location within Lot 7 in line with the agreed parking of motor vehicles on private lots.

In conclusion, Perth Recruitment submit that Efficient is attempting to 'bully and force the other owners to forego and transfer parts of the common property to suit [Efficient], grant [Efficient] exclusive usage rights and to change the very nature of the property to suit [Efficient]' and that this must stop.

Efficient's position

Efficient contends that even if the same or similar orders were sought in previous applications to the Tribunal, that does not support Perth Recruitment's strike out application because circumstances in the strata complex have changed markedly since the previous decisions of the Tribunal. In particular, the following has occurred in the strata complex according to Efficient:
(a)the toilets on part Lot 7 and part Lot 8 were removed however, on part Lot 7 there is now a shed and the permanent storage of two large bins. In response to Efficient's request to Perth Recruitment for the bins not to be left in the accessway, Perth Recruitment expressly stated through Mr Kullack's email of 20 June 2022 that part Lot 7 does not make up any part of the accessway to access Lot 8 and that the bins will stay where they are on its part Lot 7. Efficient say this conduct is contrary to Mr Kullack's submission to the Tribunal in the previous proceedings CC 1672 of 2020 and CC 1742 of 2020 that '[a]t no stage [has Perth Recruitment] ever revoked the permission granted […] to Efficient and its guests to use […] part lot [7] to access their lot [8]'; and
(b)the parking arrangement on Lot 8 is to change largely in response to demands by Mr Kullack and others concerning the carport behind Lot 8. The parking will change to be at 90 degrees to the accessway and this will require different use of the common property for manoeuvring.

It is the position of Efficient that the six metre wide accessway as referred to in conduct by-law 2(e) no longer exists because of the shed and bins placed on part Lot 7 by Perth Recruitment with the result that '[Efficient] no longer has adequate manoeuvring for access to parking for [Efficient's Lot 8]'.
Efficient refute Perth Recruitment's accusations of bullying and forcing the other owners to forego or transfer parts of the common property of the strata scheme to Efficient. Instead, Efficient contends that Ms Janet Williamson has been the subject of a 'relentless strategy to intimidate, harass, cause disadvantage and extort [Ms Williamson] into acquiescing to their demand for … payments for which she has no obligation … and which amounts to seeking a private benefit for relinquishing occupation of the common property in contravention of the by-laws'.

The Tribunal's power to strike out or dismiss a proceeding

The Tribunal (by a legally qualified member) has the power to dismiss or strike out a proceeding to which s 47 of the SAT Act applies.
Section 47(1) of the SAT Act provides that the section applies if the Tribunal believes that a proceeding:
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
On its proper construction, s 47 of the SAT Act includes the power to strike out part of a proceeding in addition to the power to dismiss or strike out a proceeding in its entirety (Laurent and Commissioner of Police [2009] WASAT 254 (Laurent) at [25]).
In Laurent, Deputy President Judge Pritchard (as she then was) considered in detail the power of the Tribunal in relation to applications under s 47 of the SAT Act. From what her Honour said in Laurent, his Honour, Deputy President Sharp (as he then was) made the following observations in Ellis and Director General of the Department of Transport [2011] WASAT 142 (Ellis) at [63]:
…
1.Section 47(1) of the SAT Act applies if the Tribunal believes that a proceeding is frivolous, vexatious, misconceived or lacking in substance or is being used for an improper purpose, or is otherwise an abuse of process. If s 47 of the SAT Act applies, the Tribunal may order under s 47(2) of the SAT Act that the proceeding be dismissed or struck out and make any appropriate orders. The Tribunal may exercise this power on its own initiative or on the application of a party.
2.Any application to dismiss or strike out a proceeding in the Tribunal should be approached with a great deal of caution.  That will be all the more so when a party whose case is the subject of an application under s 47 is self-represented, does not have the benefit of legal representation or legal training and may have difficulty in precisely setting out their claim in writing.
3.Nothing in s 47 of the SAT Act contains a temporal restriction on when an application under that section may be made or considered.  Plainly, as in this case, an application may be made at an interlocutory stage, but it may also be made in the course of the substantive hearing of a proceeding.  The power in s 47 should be exercised particularly cautiously if an application for its exercise is made prior to the substantive hearing of an applicant's case.
4.When, as in the present case, an application is made at an interlocutory stage, the Tribunal should assume that all of the factual assertions made by an applicant will be made out and consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived or lacking in substance.  Even then, however, caution should be applied in the exercise of the power in s 47.  If there is a serious question of fact to be determined, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act.
5.In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the powers of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action.
The above observations continue to reflect the Tribunal's position with regard to the powers of the Tribunal under s 47 of the SAT Act.
The decision to dismiss a proceeding as misconceived or as lacking in substance is one that should only be taken after very careful consideration of the case and where it is clear that there is no realistic prospect of success. While the Tribunal may be conscious of an applicant's desire to air their grievance so that they can be fully ventilated and any witnesses the applicant wants heard can be called, to permit proceedings to continue on the basis of very broad allegations where there is no prospect of success creates a substantial prejudice to the respondent: Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [44] to [45].
An application is misconceived or lacking in substance where the applicant has no arguable case in fact or law which should be allowed to be resolved at a full hearing: Cocks Macnish & Anor v Biundo [2004] WASCA 194 at [30] and at [79]. The term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact: Laurent at [23].
Section 198(5) of the ST Act extends the grounds on which a 'scheme dispute' may be dismissed under s 47 of the SAT Act. As Efficient's application is made under s 47(3) of the ST Act, that is not for a scheme dispute, s 198(5) of the ST Act is not relevant in these proceedings.
Separately, under s 48 of the SAT Act, if the Tribunal believes that the applicant to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by such conduct, such as vexatiously conducting the proceeding, then the Tribunal may order that the proceeding is dismissed or struck out. In Legal Profession Complaints Committee and Khosa [2021] WASAT 64, at [12] to [18] and [20], her Honour, President Pritchard made the following observations about s 48 of the SAT Act (citations omitted):
12… First, the basis on which the Tribunal may act is that it believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding. When used as a verb, the word disadvantage means 'to cause disadvantage to', to have a detrimental effect on', and to subject to disadvantage'. As a noun, disadvantage means 'detriment', 'damage or harm to one's situation' and an 'unfavourable circumstance or condition'.
13Secondly, the disadvantage must be unnecessary. That, no doubt, reflects the fact that the conduct of proceedings often and necessarily results in some disadvantage to a party, for example, in the entry of judgment against a party which might have consequences in terms of performance of orders, in awards of costs or in orders compelling a party to do something, or refrain from doing something. That is the nature of litigation. The point is that the disadvantage must be unnecessary in all of the circumstances.
14Thirdly, the disadvantage must arise from the way in which one party is conducting those proceedings. Therefore, there must be a causal nexus between the party's conduct of the proceedings and the unnecessary disadvantage to the other party. Pausing there, it may be observed that the Tribunal's power under s 48 of the SAT Act is a power conferred on it in order to carry out its objectives under s 9(b) of the SAT Act, to ensure that proceedings are conducted as speedily and with as little formality and technicality as is practicable and in a way which minimises the cost to the parties. The Tribunal's objectives also include to achieve the resolution of questions, complaints or disputes, and to make or review decisions, fairly and according to the substantial merits of the case.
15Fourthly, while s 48(1) of the SAT Act contains a list of conduct which may constitute the conduct of proceedings in a way which unnecessarily disadvantages the other party, that list is not exhaustive. Nor is the conduct there set out of a kind which inevitably can be characterised as conduct which will warrant the exercise of the Tribunal's power under s 48 of the SAT Act. In each case, it will depend on the Tribunal having sufficient information before it to found a belief that the conduct was of a kind which brought about an unnecessary disadvantage to the other party.
16Fifthly, if conduct of a kind described in s 48(1) of the SAT Act is shown to have been engaged in by one party, that enlivens the Tribunal's power under s 48(2) of the SAT Act. Clearly, s 48(2) of the SAT Act confers a discretion on the Tribunal in relation to the exercise of that power. All of the circumstances of the case will be relevant to the Tribunal's exercise of that discretion. Those circumstances will include whether the party engaging in the conduct did so with a view to causing unnecessary disadvantage to the other party or whether there was some innocent explanation for that conduct. The nature of the limited, but very serious, power that the Tribunal has under s 48(2) of the SAT Act will also be relevant to the exercise of discretion, as will the Tribunal's ability to signal its disapproval of the party's conduct in other ways, such as by orders for costs under s 87 of the SAT Act.
17Sixthly, as I have just observed, the Tribunal's powers under s 48(2) of the SAT Act are limited but very serious in nature. They involve striking out or dismissing the proceeding if the conduct was engaged in by the applicant, or determining the proceedings in favour of the applicant, or striking out a respondent, if that respondent engaged in conduct causing disadvantage to an applicant. In any of those situations, the Tribunal's order would be fatal to the case advanced, either by the party whose case is dismissed, or the party who has been struck out from participating in the proceedings.
18In the latter respect, the power of the Tribunal to strike out under s 48 of the SAT Act is similar to the Tribunal's power under s 47 of the SAT Act. Both permit the Tribunal to dismiss a proceeding other than on the merits of the case. The principles in relation to s 47 of the SAT Act strikeout applications were discussed by me in the 2019 Strikeout Decision. In my view, the approach taken by the Tribunal in dealing with an application under s 48 of the SAT Act should be similar to its approach to an application under s 47 of the SAT Act, in two respects. First, the Tribunal should bear in mind that to determine a proceeding other than on the merits of the applicant's or respondent's case is an exceptional step to take. Further, the party applying for relief under s 48 of the SAT Act bears a heavy burden in persuading the Tribunal to exercise its discretion.
…
20For present purposes, two of those observations bear repetition. First, the power in s 78(2) of the VCAT Act (and thus s 48(2) SAT Act) is both conditional and discretionary: conditional in the sense that it may not be exercised unless the Tribunal has formed the belief that a party is conducting the proceedings in a way that unnecessarily disadvantages another party; and then discretionary in the sense that the Tribunal may refuse to exercise its discretion even if it is so satisfied. Secondly, the exercise of the discretion should only be exercised where there is no other way to achieve a just outcome.
Finally, if the proceeding, or part thereof, is dismissed or stuck out under s 47 or s 48 of the SAT Act, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a judicial member (s 49 of the SAT Act).
I now turn to work through each of the grounds that Efficient claim that Perth Recruitment has breached in respect of conduct by-laws 1(1), 1(2), 2(a), 2(b), 2(c), 2(d), 2(e), 6, 7(b) and 13 to decide if the matters, the subject of Efficient's application to the Tribunal, have already been determined by the Tribunal in earlier proceedings and are to be struck out or dismissed under s 47 or s 48 of the SAT Act. In order to do this, I will need to first determine if Efficient has standing under s 47(4) to make the application filed with the Tribunal under s 47(3) of the ST Act. If I conclude that Efficient does not have standing under one of the three alternatives in s 47(4) of the ST Act to make the application under s 47(3) of the ST Act, then the current proceedings will come to an end. However, if I conclude that Efficient does have standing, then I will need to consider if any or all of the grounds made by Efficient are to be struck out of these proceedings, as urged by Perth Recruitment.

Consideration

Standing

In the current proceedings Efficient, as a lot owner, applied to the Tribunal under s 47(3) of the ST Act for the enforcement of the scheme by-laws.
It is clear that an application under s 47(3) of the ST Act must be made against a person whom it is alleged is in contravention of the scheme bylaws. This is because under s 47(5) of the ST Act, the orders which the Tribunal may make, upon the Tribunal being satisfied that the person has contravened one or more of the scheme by-laws, are solely directed to the person in contravention of the scheme by-laws. In these proceedings, Efficient alleges that Perth Recruitment has contravened a number of the scheme conduct by-laws.
Efficient, as a lot owner, must satisfy at least one of the following alternative requirements under s 47(4) of the ST Act in order to have standing to bring an application under s 47(3) of the ST Act to the Tribunal:
…
(a)if a person other than the strata company is alleged to have contravened the scheme by‑laws — the person has been given notice under subsection (1)(a) and has contravened the notice; or
(b)the contravention has had serious adverse consequences for a person other than the person alleged to have contravened the scheme by‑laws; or
(c)the person has contravened the particular scheme by‑law on at least 3 separate occasions.
On the information filed by Efficient on 21 March 2023 there is a written notice with the date of issue of 14 November 2022 addressed to Perth Recruitment stating it has contravened conduct by-laws 1(1), 1(2), 2(a), 2(b), 2(c), 2(d) and 2(e), 4, 6, 7(b), 12(a) and 13.[6] Finally, Efficient contend that the contraventions are ongoing on a daily basis and have occurred on at least three separate occasions as evidenced by the photographs of 15, 16 and 17 November 2022 filed with its application to the Tribunal.
[6] At hearing on 27 April 2023, Efficient stated it was not pressing the alleged contravention of conduct bylaw 12(a).
Perth Recruitment accepts it received the written notice from Efficient with an issue date of 14 November 2022. Further, Perth Recruitment state that while the notice was issued on 14 November 2022, the application by Efficient was filed with the Tribunal just four days later on 18 November 2022. It is the position of Perth Recruitment that the written notice provides no evidence of any contravention of the conduct by-laws in respect of vehicle parking as the parking of motor vehicles has remained unchanged from June 2020.
While the number of days between the issue of the written notice and the filing of the application with the Tribunal was only four days, there is nothing in s 47(2) of the ST Act specifying that the written notice must state by what time period action must be taken or be refrained from being taken in order to avoid a continuing or further contravention of the particular scheme by-law.
However, depending on the circumstances of the case, the short period of time between the issue of the written notice and the filing of an application with the Tribunal may be a relevant factor in deciding whether to exercise the Tribunal's discretion to make an order under s 47(5) in regards to a monetary penalty or to impose a specified action or to refrain from taking specified action to prevent further contravention of the particular conduct by-law.
In the alternative, Efficient assert the alleged contraventions of various conduct by-laws has had serious adverse consequences for the access to and egress from Lot 8. Perth Recruitment strongly refutes this stating that Lot 8 is used as an Airbnb for short-term accommodation and that since June 2020 their guests (at least 300) with differing sized motor vehicles including large 4WD vehicles towing camp trailers have accessed and egressed from Lot 8 and on no occasion was Perth Recruitment asked to move any of the vehicles parked at the rear of Lot 7 or to move the shed or the rubbish bins on part Lot 7 in order to accommodate guests accessing or egressing from Lot 8. In addition, Perth Recruitment state that parking behind Lot 7 complies with conduct by-laws 1 and 2 and in particular conduct by-law 2(e).
In my view Efficient has given written notice to Perth Recruitment of the alleged contraventions of the conduct by-laws and therefore, prima facie, has standing to make the application to the Tribunal under 47(3) of the ST Act. The written notice comports with the requirements of s 47(2) of the ST Act in that the written notice:
(a)specifies the particular conduct by-laws which Perth Recruitment is alleged to have contravened (being conduct by-laws 1(1), 1(2), 2(a), 2(b), 2(c), 2(d), 2(e), 6, 7(b) and 13);
(b)specifies the facts on which Efficient relies as evidence of the contraventions of the particular conduct by-laws; and
(c)specifies the actions that Perth Recruitment must take or refrain from taking in order to avoid a continuing or further contravention of the particular conduct by-laws.
The requirements in s 47(2) of the ST Act are directed to the written notice given by the strata company. In this case, as the applicant is a lot owner, it is not mandatory, in my view, for Efficient to comply with the requirements of s 47(2). Having said that, the requirements for the written notice as set out in s 47(2) of the ST Act are, in my view, reasonable and appropriate for a lot owner to comply with in preparing the written notice.
In summary, in my view, Efficient, as an owner, has standing under s 47(3) read with s 47(4) of the ST Act to make the application to the Tribunal for the enforcement of particular conduct bylaws. For avoidance of doubt, my finding here is only as to standing to make an application to the Tribunal. The next step is for me to determine if all or part of the claims made by Efficient are to proceed to hearing or are to be struck out or dismissed as urged by Perth Recruitment.

Strike out

Efficient, in their application, assert that the circumstances in the strata complex have changed markedly where a shed is located on part Lot 7 along with the permanent storage of two large bins which is contrary to Perth Recruitment's submissions to the Tribunal in the previous proceedings CC 1672 of 2020 and CC 1742 of 2020 that '[a]t no stage [has Perth Recruitment] ever revoked the permission granted [...] to Efficient and its guests to use [the] part lot [7] to access Lot 8.

Conduct by-laws 1(1) and 1(2)

Efficient contend that Perth Recruitment is in breach of conduct bylaw 1(1) and 1(2) which concerns vehicles and parking. Those conduct by-laws provide:
1.Vehicles and parking
(1)An owner or occupier of a lot must take all reasonable steps to ensure that the owner's or occupier's visitors comply with the scheme by-laws relating to the parking of motor vehicles.
(2)An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the strata company.
The orders sought by Efficient in respect of the breach of conduct bylaws 1(1) and 1(2) are the four orders set out above at [11].

The principles applicable to the proper construction of scheme bylaws were summarised in The Owners of Del Mar Strata Plan 53989 and Dart Enterprises Pty Ltd [2020] WASAT 9 at [46] to [48].
Conduct by-laws 1(1) and 1(2), properly construed, impose obligations on the owner and occupier of a lot. Conduct by-law 1(2) requires that an owner or occupier not park a vehicle on common property without the written approval of the strata company. This conduct by-law must be read in context with conduct by-law 2(e) which permits vehicles parked on a lot to overhang on to the common property by up to one metre and which would not impede or hinder vehicles using the six metre wide accessway.
Efficient contend that Perth Recruitment is failing to take all reasonable steps to ensure that they and their visitors comply with these conduct bylaws and that they are actively encouraging parking on Lot 7 resulting in the overhang into the common property and without any written approval of the strata company.
The issue of parking on private lots and overhang onto the common property was dealt with in matter CC 644 of 2020 where by consent of the parties the Tribunal ordered that Perth Recruitment and Mr Anderson along with their visitors and employees not park on the common property, or in a position on their lot which encroaches on to the common property in a manner that obstructs vehicle access and egress for Lot 8 via the common property. Subsequently, in matter CC 1682 of 2020 the Tribunal dealt with the issue of vehicle parking and common property. In that proceeding, the Tribunal found that both Efficient and Rosskeen were in breach of by-laws 1(1) and 1(2) as they both parked vehicles on the common property behind Lot 8 but the Tribunal declined to make an order on the basis that both Efficient and Rosskeen had both parked vehicles wholly on the common property. Lastly, in proceedings CC 1672 of 2020 and CC 1742 of 2020, the Tribunal dealt with issues of vehicle parking, common property and the validity of the new conduct bylaw 2(e). To resolve the scheme dispute, in those proceedings, the Tribunal made orders, including that the strata company had passed a resolution without dissent authorising conduct by-law 2(e).
Therefore, in my view, the grounds that Efficient claim in respect of the alleged breach of conduct by-law 1(1) and by-law 1(2) have already been determined by the Tribunal and are therefore struck out under s 47(1) of the SAT Act.

Conduct by-laws 2(a), 2(b), 2(c), 2(d) and 2(e)

Efficient seeks orders for the breach of conduct by-laws 2(a), 2(b), 2(c), 2(d) and 2(e). Those conduct by-laws provide:
2.Use of common property
An owner or occupier of a lot must-
(a)use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment of the common property by other owners or occupiers of lots or of their visitors; and
(b)not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to an occupier of another lot (whether an owner or not) or the family of such an occupier; and
(c)take all reasonable steps to ensure that the owner's or occupier's visitors do not behave in a manner likely to interfere with the peaceful enjoyment of an owner or occupier of another lot or of a person lawfully using common property; and
(d)not obstruct lawful use of common property by any person.
(e)all vehicles parking on the private areas of all lots and roof structure of all carports shall be permitted to overhang a reasonable extent over the common property by up to one (1) metre and which would not impede or hinder vehicles using the six (6) metre wide accessway.
The orders sought by Efficient in respect of the breach of conduct bylaws 1(1) and 1(2) are the four orders set out above at [11].
Conduct by-laws 2(a) through 2(d), properly construed, imposed obligations on the owner and occupier of a lot concerning the use of the relevant lot and the use of the common property.
For the same reasons as set out above in regards to conduct by-laws 1(1) and 1(2), in my view, the Tribunal has already dealt with the issue of parking on Lot 7 and the overhang on to the common property. Therefore, in my view, the claims made by Efficient in respect of the alleged breach of conduct by-laws 2(a), 2(b), 2(c) and 2(d) are struck out under s 47(1) of the SAT Act.
However, what is different in the current proceedings is that there is a shed and permanent storage of two large bins on part Lot 7 (as evidenced by the photographs and accepted to be the case by Perth Recruitment) which Efficient contends impedes or hinders vehicles when using the six metre wide accessway provided for in conduct bylaw 2(e). In Efficient Building Team Pty Ltd and The Owners of 25, 27, 29 31 Parry Street Fremantle Strata Plan 6413 [2021] WASAT 158 the proper construction of conduct by-law 2(e) was set out in [116], [119] to [120] as follows:
116Conduct by-law 2(e) does not expressly refer to Lot 8, unlike the 19 June 2020 consent order. Rather, conduct by-law 2(e) deals with overhang on to the common property from all lots and not just Lot 6 and Lot 7. Further conduct by-law 2(e) uses the term 'accessway'. That term is defined by Efficient as follows:
The whole of the common property situated directly to the rear (West) of and adjacent to the Lots and extending to the rear of the Strata Plan is used for vehicle access and manoeuvring to and from the Lots and is approximately 5.8 metres wide except for interruptions by part Lots 6, 7 and 8.
…
119In summary, conduct by-law 2(e) properly construed means:
a)no vehicles may park on the common property except as provided for in (b);
b)a parked vehicle may overhang on to the common property by up to one metre provided that the vehicle does not impede or hinder vehicles using the remainder of the common property;
c)no carport roof structure may overhang on the common property except as provided for in (d); and
d)a carport roof structure may overhang on to the common property by up to one metre provided the carport roof structure does not impede or hinder vehicles using the remainder of the common property.
120It may be found that on construing a by-law, that the by-law is contrary to a provision of the ST Act, or alternatively, that to give effect to the by-law would not be in the interests of all proprietors because, for example, it is unworkable, or may have unintended and undesirable consequences. I am unable to make any such finding in this case. While some of the wording in conduct bylaw 2(e) may be described as infelicitous drafting, in my view, the proper construction of the by-law is clear as set out in the previous paragraph, and has the effect of restricting all owners' use of the common property to only what is required by the strata company's duty to control and manage the common property for the benefit of all the owners. In other words, the restriction of the vehicles parked overhanging on to common property of up to 1 metre provided that such overhang does not impede or interfere vehicles using the six metres wide accessway (the common property) is, in my view, to be regarded as being in the interests of, and for the benefit of all the owners.
(Footnotes omitted)
Efficient's position is that the 'accessway' as provided for in bylaw 2(e) to access Lot 8 is no longer available due to the shed and the permanent storage of two large bins on part Lot 7 which Efficient contends is contrary to the position put to the Tribunal in the proceedings in CC 1672 of 2020 and CC 1742 of 2020 at [27(k)(viii)] that:
no one has stopped [Ms Williamson] (or anyone else) driving over part Lot 7 and part Lot 8 since the toilets were demolished and removed in late July 2021.
Perth Recruitment reiterate that nothing has changed since June 2020 where in proceeding CC 1742 of 2020 the Tribunal found that access to and egress from Lot 8 was not blocked or obstructed even with the toilets on part Lot 7 and part Lot 8.
In my view, circumstances in the strata complex have changed as there is now a shed and rubbish bins on part Lot 7 which Efficient assert impede or hinder vehicles using the 'accessway' when vehicles overhang onto the common property from Lot 7. In other words, what Efficient is asserting is that Perth Recruitment has contravened conduct by-law 2(e).
Following Ellis, where an application for dismissal or strike out is made at the early stages of the proceeding (as is the case here), I have assumed that all of the factual assertions made by Efficient will be made out at a final hearing. Consequently, in my view, the claim by Efficient is not frivolous, vexatious, misconceived or lacking in substance. Further, in my view, I cannot conclude there is no prospect of success and therefore Efficient's claim that Perth Recruitment contravened bylaw 2(e) is to proceed to hearing to determine if Perth Recruitment has contravened conduct by-law 2(e).

Conduct by-law 6

Conduct by-law 6 provides:
6.Depositing rubbish etc. on common property
An owner or occupier of a lot must not deposit or throw on that lot or any other lot or the common property any rubbish, dirt, dust or other material likely to interfere with the peaceful enjoyment of an owner or occupier of another lot or of any person lawfully using the common property.
Conduct by-law 6 properly construed imposes an obligation on owners and occupiers of a lot to not leave any rubbish or other materials on any lot or the common property that are likely to interfere with the peaceful use and enjoyment of the lot or common property.
Efficient contends that Perth Recruitment has and continues to store or leave rubbish on the common property between the shed on part Lot 7 and the brick wall alongside the rear boundary of the parcel. In the material filed with the Tribunal by Efficient there is one photograph which shows the cardboard rubbish behind the shed on part Lot 7.[7] Separately, Efficient has filed a photograph showing what appears to be timber left in the same place that the cardboard rubbish was previously stored or left behind the shed on part Lot 7.
[7] Efficient's response to strike out application dated 20 December 2022.
Perth Recruitment concedes that cardboard rubbish was stored behind the shed on part Lot 7 and the rear boundary of the strata complex on one occasion while it was waiting for space to become available in the recycle bin to dispose of the cardboard rubbish. Further, Perth Recruitment accepts that timber was stored on part Lot 7 in December 2022. However, Perth Recruitment contends that there is no timber on the common property.
There is a different version of events, where Efficient say the storage of rubbish continues on the common property between the shed on part Lot 7 and the brick wall alongside the rear boundary but Perth Recruitment disputes this.
It is common ground that the alleged breach of conduct by-law 6 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 6 is to proceed to hearing to determine if Perth Recruitment has contravened conduct by-law 6.

Conduct by-law 7(b)

Conduct by-law 7(b) provides:
7.Drying of laundry items and signage
An owner or occupier of a lot must not, except with the consent in writing of the strata company —
(a)…
(b)display any sign, advertisement, placard, banner, pamphlet or like matter on any part of their lot in such a way as to be visible from outside the building.
Properly construed conduct by-law 7(b) imposes an obligation on the owner or occupier of a lot to obtain in writing from the strata company approval to display a sign where the signage is visible from outside the building.
Efficient contends that Perth Recruitment has affixed a sign to the rear of its building encouraging and inviting parking on the rear of Lot 7 without the written consent of the strata company.
Perth Recruitment's position is that the sign had been in place for over 20 years and was moved to its current position on the rear of Lot 7 in line with the agreed parking position on private lots.
It is common ground that the alleged breach of conduct by-law 7(b) 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 7(b) is to proceed to hearing to determine if Perth Recruitment has contravened conduct by-law 7(b).

Conduct by-law 13

Conduct by-law 13 provides:
13.Notice of alteration to lot
An 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.

Conclusion and orders

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.
Efficient assert that Perth Recruitment has contravened conduct bylaw 2(e) by hindering or impeding access to the accessway when vehicles are parked on Lot 7 that overhang onto the common property with the shed and rubbish bins in place on part Lot 7. The Tribunal has not previously considered a contravention of conduct by-law 2(e) in such circumstances and therefore it is appropriate for this claim to be heard and determined by the Tribunal.
Finally, in regards to the other alleged breaches of conduct by-laws 6, 7(b) and 13 these have not previously been considered by the Tribunal and for the reasons given above, it is appropriate in my view for these claims to also be heard and determined by the Tribunal.
I make the following orders.

Orders

The Tribunal orders:
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 bylaws 2(e), 6, 7(b) and 13 to a final hearing.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
22 MAY 2023