EFFICIENT BUILDING TEAM PTY LTD and ROSSKEEN PTY LTD - [2021] WASAT 157

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   EFFICIENT BUILDING TEAM PTY LTD and ROSSKEEN PTY LTD [2021] WASAT 157
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   28 SEPTEMBER 2021
DELIVERED          :   13 DECEMBER 2021
FILE NO/S:   CC 1682 of 2020
BETWEEN:   EFFICIENT BUILDING TEAM PTY LTD
Applicant
AND
ROSSKEEN PTY LTD
First Respondent
THE OWNERS OF 25, 27, 29, 31 PARRY STREET FREMANTLE STRATA PLAN 6413
Second Respondent

Catchwords:

Strata Titles Act 1985 (WA) (as it applies from 1 May 2020) - Resolution of scheme dispute - Scheme by-laws - Vehicle parking on common property - Proper construction of by-laws - Discretion of Tribunal to make a decision to not make an order or declaration - Turns on own facts

Legislation:

City of Fremantle Local Planning Scheme No 4, cl 4.7.6(i)
State Administrative Tribunal Act 2004 (WA), s 95, s 95(1)
Strata Titles Act 1985 (WA), S 29, s 43, s 44(1), s 47, s 47(3), s 47(3)(a), s 47(5), s 47(5)(a), s 199, s 200, s 202, Sch 1, Sch 2, Sch 5, cl 4(1), cl 4(2)
Strata Titles Amendment Act 2018 (WA)

Result:

Application unsuccessful

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	In Person
Second Respondent	:	Did not participate

Solicitors:

Applicant	:	N/A
First Respondent	:	N/A
Second Respondent	:	N/A

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

Efficient Building Team Pty Ltd and The Owners of 25, 27, 29, 31 Parry Street, Fremantle Strata Plan 6413 & Anor [2021] WASAT 158
The Owners of Del Mar Strata Plan 53989 and Dart Enterprises Pty Ltd [2020] WASAT 9

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In or about November 2019, the applicant, Efficient Building Pty Ltd (Efficient) purchased Lot 8, which is one of four strata lots on Strata Plan 6413 and having the address of 25, 27, 29 and 31 Parry Street, Fremantle. The strata scheme comprises four limestone cottages built in the late 1890s and are therefore in excess of 120 years old.
On 8 December 2020, Efficient commenced this proceeding in the Tribunal by an application under s 47(3) of the Strata Titles Act 1985 (WA) (ST Act).[1] It comes within the Tribunal's original jurisdiction (s 29 of the ST Act). Efficient seeks orders to resolve a scheme dispute involving the first respondent, Rosskeen Pty Ltd (Rosskeen) which is the owner of Lot 5 on Strata Plan 6413 and the second respondent, The Owners of 25, 27, 29 and 31 Parry Street, Fremantle Strata Plan 6413 (the strata company). The strata company did not participate in this proceeding.[2]
[1] In these reasons all references to the ST Act are to the ST Act as is applies from 1 May 2020 (unless expressly stated otherwise).
[2] See the orders of the Tribunal made on 18 May 2021 (Exhibit 1, at page 457).
In addition to the current proceeding, Efficient also has two other proceedings in the Tribunal against the other…

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: [2021] WASAT 157
Decision Date: 13 DECEMBER 2021

CaseChat Overview and Summary

Efficient Building Team Pty Ltd and Rosskeen Pty Ltd brought an application before the Tribunal seeking an order and declaration in relation to parking on common property in a strata complex. The dispute arose due to vehicles being parked on the common property area behind Lot 8, which interfered with the reversing and turnaround manoeuvres of vehicles attempting to exit the strata complex. Both parties were found to be in breach of the by-laws, and the Tribunal had to decide on several issues including whether a penalty should be imposed and whether a declaration should be made under section 95 of the Strata Titles Act. The Tribunal found that neither party would fail to comply with its decision and hence there was no need for a declaration under section 95. The Tribunal concluded that both parties were in breach of the by-laws, but no penalty would be imposed under section 47(5) of the Strata Titles Act, and no declaration would be made under section 95 of the Strata Titles Act. The Tribunal decided not to make any orders or declarations apart from dismissing the application. The Tribunal made a finding that the common property was uninterrupted, except for part Lots 6, 7, and 8, which previously had outside toilets. It was found that Mr Stroud had parked his vehicle on the common property behind Lot 8 on occasion between October 2020 and March 2021. Efficient's visitors and tradespeople to Lot 8 had also parked their vehicles on the common property behind Lot 8. Efficient contended that any vehicle parked on the common property behind Lot 8 obstructed the reversing and turnaround manoeuvre of any vehicle attempting to egress from Lot 8. Rosskeen contended that visitors and tradespeople to Efficient's Lot 8 had parked their vehicles on the common property behind Lot 8. The Tribunal found that both parties were in breach of the by-laws, but no penalty would be imposed and no declaration would be made under section 95 of the Strata Titles Act. The Tribunal dismissed the application and made no orders or declarations apart from dismissing the application. The Tribunal may decide not to make an order under section 202 of the Strata Titles Act, and in this case, the Tribunal decided not to make any orders or declarations apart from dismissing the application.

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

Section 95 of the SAT Act provides for the imposition of a penalty of $10,000 if a person fails to comply with a decision (apart from a decision that is a monetary order) of the Tribunal. Relevantly, the section provides:Failing to comply with decision(1)A person who fails to comply with a decision of the Tribunal commits an offence.Penalty: $10 000.(2)Subsection (1) does not apply if, or to the extent that, the decision is a monetary order.(3)Subsection (1) does not apply in relation to a decision unless —(a)the Tribunal, in the decision, declares that subsection (1) applies; or(b)after a person fails to comply with the decision, the Tribunal makes an order declaring that subsection (1) applies and the failure continues after notice of that order is served on the person[.] Mr Stroud in giving evidence stated that he would abide by the decision of the Tribunal. Ms Williamson in giving evidence stated that she instructs visitors and other persons to Lot 8 to not park on the common property behind Lot 8 (the turnaround area). There is nothing before the Tribunal to suggest that either party would fail to comply with the decision of the Tribunal. Consequently, in my view, it is not necessary at this time to make a declaration under s 95 of the SAT Act. The four issues (set out above at [21]) are answered as follows, in summary:Issue 1:Mr Stroud conceded that he parked his vehicle on the common property area behind Lot 8 (the turnaround area) on occasion from October 2020 to March 2021. Efficient's visitors and other persons to Lot 8 (guests at the Airbnb and tradespeople) have also parked on the common property behind Lot 8 (the turnaround area).Issue 2:Both Rosskeen and Efficient are in breach of conduct by-laws 1(1), 1(2), 2(a), 2(b), 2(c) and 2(d) as evidenced by vehicles parked on the common property behind Lot 8 (the turnaround area), either with or without the consent of the owner of Lot 8. No order is to be made as both parties are in breach of the by-laws.Issue 3:A penalty will not be imposed under s 47(5) of the ST Act.Issue 4:A declaration will not be made under s 95 of the SAT Act. The result is that, pursuant to s 202 of the ST Act, I would not make any orders or declarations apart from dismissing the application. For the reasons given, I will make the following orders.The Tribunal orders:1.Pursuant to s 202 of the Strata Titles Act 1985 (WA), no order or declaration is made.2.The application is otherwise dismissed.

Ratio Decidendi

Legal Principle Established

Finally, the declarations and orders that the Tribunal may make are set out in s 199 and s 200 of the ST Act. Under s 202 of the ST Act, the Tribunal made decide not to make an order. That section provides as follows:Decision not to make order or declarationIn a proceeding under this Act, the Tribunal may make a decision not to make an order or declaration. The key facts are not in any real dispute. I make the following findings of fact which are relevant to the issues to be determined by me in this proceeding:a)The sketch[18] shows the lot boundary of Lot 8 by the 45 degree truncation that crosses the word 'carport'. The common property is most of the area on the sketch coloured yellow and the white area under the carport that follows the truncation around to the building of Lot 8. The common property is uninterrupted, otherwise by part Lots 6, 7, and 8 which all previously had outside toilets. Part Lot 6 was cleared and paved many years ago, and for all intends and purposes was part of the accessway. Part Lots 7 and 8 had the old toilets but these were demolished and removed by late July 2021.b)The strata company has been mostly inactive.c)Between October 2020 and March 2021 Mr Stroud has on occasion parked his vehicle on the common property behind Lot 8 (the turnaround area).d)Efficient's visitors and tradespeople to Lot 8 have on occasion parked their vehicles on the common property behind Lot 8 (the turnaround area). Efficient's main contentions may be summarised as follows:•Any vehicle parked on the common property behind Lot 8 (the turnaround area) obstructs the reversing and turnaround manoeuvre of any vehicle attempting to egress from Lot 8 in a forward direction to then exit the strata complex to Holdsworth Street, Fremantle.•Rosskeen has allowed Mr Stroud to park his vehicle on the common property behind Lot 8 (the turnaround area) in breach of the by-laws.•By parking on the common property behind Lot 8 (the turnaround area), Mr Stroud has unreasonably interfered with the use and enjoyment of the common property by Efficient and its visitors and causes a nuisance as well as obstructs the lawful use of the common property for the maneuvering of motor vehicles visiting Lot 8 to be able egress in a forward direction. Rosskeen's main contentions may be summarised as follows:•Visitors and tradespeople to Efficient's Lot 8 have parked their vehicles on the common property behind Lot 8 (the turnaround area).•Prior to Efficient purchasing Lot 8, the previous owner, Dr Douglas, parked his vehicle on the common property behind Lot 8 (the turnaround area) with approval of the owners. When Dr Douglas sold Lot 8, the owners of Lots 6 and 7 agreed for him to park his vehicle on the common property behind Lot 8 (the turnaround area). •Prior to Efficient purchasing Lot 8, the turnaround area was used as an overflow parking area. I now turn to address each of the four issues identified at [21] above. Mr Stroud accepts that he has on occasion parked his vehicle on the common property behind Lot 8 (the turnaround area). This usually occurred on a Friday when another podiatrist was working in his office.