Elegant Resources Pty Ltd v Creation Holdings (WA) Pty Ltd - [2019] WASC 286

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ELEGANT RESOURCES PTY LTD -v- CREATION HOLDINGS (WA) PTY LTD [2019] WASC 286
CORAM:   MASTER SANDERSON
HEARD:   30 JULY 2019
DELIVERED          :   13 AUGUST 2019
FILE NO/S:   CIV 1817 of 2019
BETWEEN:   ELEGANT RESOURCES PTY LTD
Plaintiff

AND

CREATION HOLDINGS (WA) PTY LTD
Defendant

Catchwords:

Practice and procedure - Application to enforce orders made by SAT - Discretion to refuse enforcement order

Legislation:

Civil Judgments Enforcements Act 2004 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Application dismissed

Category: A

Representation:

Counsel:

Plaintiff	:	Mr C Williams
Defendant	:	Mr E Teng

Solicitors:

Plaintiff	:	Solomon Brothers
Defendant	:	Pragma Lawyers

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

Nil

MASTER SANDERSON:

The plaintiff is the proprietor of Lot 3 in a strata titled development located on the corner of Blythe Avenue and Roscola Avenue, Yokine.[1] The defendant is the owner of Lot 5 in the same development. The defendant has leased Lot 5 to Matrix 2000 Pty Ltd (Matrix). Matrix operates a café from Lot 5. For some time Matrix used common property in front of Lot 5 as an alfresco area as part of the café business. The plaintiff objected to common property being used in that way. It took proceedings in the State Administrative Tribunal (SAT). A hearing took place on 27 August 2018. On that same day Member Petrucci made orders pursuant to s 83(1)(a) of the State Administrative Tribunal Act 2004 (WA):
[1] Stata Plan 63667 Certificate of Title Volume 2857 Folio 3.
1.Subject to order 2, the 2nd respondent (Creation Holdings (WA) Pty Ltd) shall, at the 2nd respondent's cost, by no later than 30 November 2018 ensure that all items of common property immediately in front of Lot 5 Ground Floor on Strata Plan 63667, Certificate of Title Volume 2857 Folio 5 (the common property as depicted in Attachment A) are reinstated to the original design for the building by:
(i)removing the bi-fold window facing the common property adjacent to Lot 5 and bringing the external facade back to its original state, in keeping with the commercial grade windows and commercial grade doors on the other four commercial lots;
(ii) removing the takeaway counter facing the common property, returning the external facade to its original state in keeping with the commercial grade windows on the other four commercial lots;
(iii)removing the brick masonry on the external wall below the takeaway counter and return the external facade to its original paint colour and finish;
(iv)removing the artificial turf covering the common property's existing pavement adjacent to the takeaway counter;
(v)removing all wooden fencing that has been installed adjacent to the stairwell next to Lot 4 and adjacent to the concrete barrier facing the carpark and return the paving back to its original state where damage has occurred as a result of installation of the wooden fencing;
(vi)removing all in‑built wooden seating and inbuilt planter boxes adjacent to the seating from the common property;
(vii)removing all external audio speakers;
(viii)removing the fixed acrylic 'LSZ 14' sign on the outer aspect of the common concrete barrier facing the Roscorla Avenue entrance of the car park and return the concrete fence to its original colour and finish;
(ix)removing the 'cool white' LED strip lighting located on the perimeter and under-surface of the eaves external to Lot 5 and return the eaves to the original state and condition;
(x)removing the A-frame, pot plants and portable chairs and tables placed on the common property;
(xi)removing the tarpaulin banner with the words 'Lot Six Zero eatery and espresso bar'; and
(xii)removing the Samsung outdoor air conditioning unit located adjacent to the takeaway counter.
2.If, before 30 November 2018, the 1st Respondent (The Owners of WestEnd Strata Plan 63667) grants to Matrix 2000 Pty Ltd (current tenant of Lot 5) a licence without any exclusive use or special privileges on the common property (the common property as depicted in Attachment A), the 2nd respondent is not required to comply with order 1.
(The order was amended on 20 November 2018 by adding order 3)
3.Pursuant to s 81(10) of the Strata Titles Act 1985 (WA), these orders shall continue to have force and effect beyond the expiration of a period of two years that next succeeds the making of this order.
By originating motion lodged 10 May 2019 the plaintiff sought to enforce these orders under the provisions of s 99 of the Civil Judgments Enforcements Act 2004 (WA) (the Act). As at the date of hearing the defendant had complied with some of the orders in order 1 of the SAT determination. The plaintiff lodged a minute of proposed orders on 30 July 2019. The orders that it sought were as follows:
1.The plaintiff is authorised to do the following acts at the expense of the respondent:
1.1removing the two windows on either side of the door facing the common property of WestEnd Strata Plan 63667 ('the Common Property') immediately in front of the ground floor of Lot 5 on Strata Plan 63667, Certificate of Title Volume 2857 Folio 5 ('Lot 5') and bringing the external façade back to the original design of the building of which Lot 5 forms part ('the Building') by installing the windows specified by the as-built construction plans that are attachment 'SCWK‑7' to the affidavit affirmed by Stephen Ching Wei Kwang on 29 July 2019 ('Plans') and in keeping with the commercial grade windows and commercial grade doors on the other four commercial lots in the Building (including without limitation repainting such external façade white so as to match the balance of the façade of the Building);
1.2removing the door facing the Common Property and returning the external façade to the original design of the Building by installing the door specified by the Plans in keeping with the commercial grade windows and commercial grade doors on the other four commercial lots in the Building (including without limitation re-painting such external façade white so as to match the balance of the façade of the Building);
1.3returning the external façade to it is original paint colour and finish (including without limitation re‑painting such external façade white so as to match the balance of the façade of the Building);
1.4removing the A-frame, pot plants and portable chairs and tables and other like chattels placed on the Common Property; and
1.5removing the remaining Samsung outdoors air conditioning unit located on the Common Property.
2.The parties have liberty to apply with respect to any matters relating to the above orders.
3.The proceedings otherwise be dismissed.
4.The defendant shall pay the plaintiff’s costs of the proceedings, to be taxed if not agreed.
The parties were agreed there were two issues which I had to determine. The first, had there been compliance with order 2 of the determination made by Member Petrucci. If that order had not been complied with then had the defendant complied with order 1. In other words, had the defendant in fact rectified all matters referred to in that order including those covered by par 1 of the plaintiff's minute of proposed orders. Strictly speaking if I answered the first question in the defendant's favour, the second question did not arise. However, as the matter was fully argued I have dealt with both of these issues in these reasons.
It was common ground between the parties the defendant had entered into two licence agreements. These two documents are found as attachments 'CH‑7' and 'CH‑8' to the affidavit of Tze Kai Teo sworn 26 July 2019. The first licence dated 13 November 2018, is between the owners of Westend Strata Plan 63667 (the strata company of the property) and the defendant. Without going into details, the agreement licences the defendant to conduct an alfresco café business on the common property on the front of Lot 5. The second licence agreement dated 29 November 2018 is described as a 'sub‑licence'. It is between the owners of Westend Strata Plan 63667, the defendant, and Matrix. Once again it is not necessary to go to the terms of the agreement. What it does is provide a sub‑licence from the defendant to Matrix in relation to the operation of the alfresco café on the common area. The strata company is a party to the sub‑licence to the extent it consents to the sub‑licence on the same terms as the licence between the strata company and the defendant.
It is the plaintiff's contention these two licences either separately or taken together do not satisfy the requirements of order 2. The plaintiff says that order clearly requires the strata company granting a licence to Matrix. It was submitted that has not been done. The licence was granted by the strata company to the defendant and the defendant then granted a sub‑licence to Matrix. It was submitted the arrangement, although it may have had the effect of licensing Matrix to run the café business from the common property, did not comply with the orders of the SAT.
At the outset it must be acknowledged that the licence arrangement presently in place is not strictly speaking in conformity with the orders of the SAT. Counsel for the defendant argued to the contrary. Essentially his argument was that the focus should be on the outcome without interpreting the order in such a rigid way as to favour form over substance.
Appearing as attachment 'CH‑26' to Mr Teo's affidavit is a copy of the transcript of proceedings before the SAT. Neither of the parties were represented by solicitors at the hearing. In conformity with what I understand to be the SAT's usual practice the hearing was conducted with a degree of informality. It is clear from the transcript Member Petrucci appreciated from the outset the defendant did not have the right to make modifications to the common property occupied by Matrix nor did it have the right to allow Matrix to conduct its activities on the common property. However, the learned member was looking for a practical solution to this problem. She referred to the possibility of a licence. It is clear from the transcript what was important to her was the fact of the licence. She referred on a number of occasions in the transcript to the licence being held by Matrix. That was eventually the way in which the orders were crafted. But there is nothing in the transcript to suggest she saw any particular magic in the name of the party having the licence. She saw a licence as being important.
The settling of orders after a hearing can be a difficult business. Most cases are straightforward and cause no difficulty. But when orders in the nature of equitable relief are required particular care is required for their drafting. It is a matter which can vex even experienced solicitors. The learned member in this case did not have the benefit of the input of legal practitioners. To approach the order in the way proposed by the plaintiff is, to my mind, too technical.
Section 99(3) of the Act gives to the court a discretion as to whether or not a judgment such as the one obtained by the plaintiff in this case ought be enforced. The discretion is unfettered, but must be exercised judicially. In the exercise of that discretion I would decline to make the order sought by the plaintiff. I am satisfied there has been substantial compliance by the defendant with the orders of the SAT and it would be unfair and unjust to adopt the interpretation of the orders proposed by the plaintiff and allow enforcement.
That decision seems to lead to this consequence. Although there has not been strict compliance with order 2 I would not make an enforcement order with respect to order 1. In fact, order 2 does not, and has never, been amenable to an enforcement order. It could only ever have been the case that s 99 would have been used to enforce order 1.
As I have indicated above I will deal briefly with the question of whether the defendant has complied in any event with order 1. With reference to the minute of orders proposed by the plaintiff, items 1.1 to 1.3 can be taken together. It appears consequent upon the SAT's orders the defendant made modifications to unit 5 which returned it to the condition it was in prior to modifications it made. When the defendant acquired the unit, it had been used as a café and traded under the name 'Gooseberries'. What the defendant did after the SAT decision was return the premises to the condition it was in when it was occupied by 'Gooseberries'. It was the plaintiff's contention the premises should have been returned to the 'original design' of the building (as that phrase is used in the proposed orders). On behalf of the defendant it was submitted the idea of returning the façade to the original design was never canvassed at the SAT hearing. The first time the defendant saw the original design was when it was annexed to the affidavit of Stephen Ching Wei Kwang filed 29 July 2019.[2]
[2] Annexures 'SCWK‑6' and 'SCWK‑7'.
It is clear the original design was never before Member Petrucci. The discussion about the condition to which the plaintiff wanted the defendant to return the property was never clearly stated. But there was certainly nothing to suggest the modifications the plaintiff wanted the defendant to make went back beyond the time when Lot 5 was occupied by 'Gooseberries'. Accordingly I am satisfied that there has been compliance with pars 1.1 and 1.2 – the defendant having done what it quite reasonably believed had to be done.
Paragraph 1.3 is a little more difficult. It is clear the present paint colours on the façade do not match the colours on the other units. The photographs attached to Mr Kwang's affidavit suggest when 'Gooseberries' occupied the premises there was a sign above the windows which occupied the whole of the space and there was no scope for painting the façade to match the other units. Given the sign 'Gooseberries' had to be removed it does seem reasonable to suppose that repainting the façade required matching the colour with the other units. According, I am not satisfied the defendant has complied with that aspect of order 1.
The defendant has continued to place an A‑frame (an advertising sign), pot plants, portable chairs and tables and other like chattel on the common property. Counsel argued the SAT order required removal of these items once and did not restrain the defendant from replacing them at a later date. Clearly that cannot have been the intent of the order and the submission should be rejected. There has been no compliance with that aspect of the order.
Finally there is the question of the outdoor air‑conditioning unit. It would seem that there were two air‑conditioning units installed by the defendant. One faced the common property and has been removed. The other unit is on the side of the building and is still in situ. Although the orders of the SAT are not entirely clear it seems logical that any air‑conditioning unit which intruded onto the common property and which was installed without permission was intended to be covered by the order. On that basis I am not satisfied there has been compliance with that aspect of the SAT orders.
In conformity with these reasons I would dismiss the plaintiff's application. Subject to hearing from counsel the plaintiff ought pay the defendant's costs of the application including reserved costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
Associate to Master Sanderson
14 AUGUST 2019