ENGWIRDA and THE OWNERS OF QUEENS RIVERSIDE STRATA PLAN 55728

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   ENGWIRDA and THE OWNERS OF QUEENS RIVERSIDE STRATA PLAN 55728 [2022] WASAT 19
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   11 MARCH 2022
FILE NO/S:   CC 732 of 2017
BETWEEN:   JENNIFER ENGWIRDA
Applicant
AND
THE OWNERS OF QUEENS RIVERSIDE STRATA PLAN 55728
Respondent

Catchwords:

Strata Titles Act 1985 (WA) pre 1 May 2020 - Section 90 orders for inspection of records and documents of strata company excluding documents subject to legal professional privilege - Documents over which legal professional privilege claimed provided to the applicant - Remainder of proceeding dismissed as lacking in substance

Legislation:

State Administrative Tribunal Act 2004 (WA), s 47(2)
Strata Titles Act 1985 (WA) (pre 1 May 2020), s 90

Result:

Remainder of proceeding dismissed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	N/A
Respondent	:	Wotton + Kearney Lawyers

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

Engwirda and The Owners of Queens Riverside Strata Plan 55728 [2021] WASAT 17
Engwirda and The Owners of Queens Riverside Strata Plan 55728 [2021] WASAT 17(S)
The Owners of Queens Riverside Strata Plan 55728 v Engwirda [2021] WASC 392

REASONS FOR DECISION OF THE TRIBUNAL:

This proceeding was commenced by an application made to the Tribunal by Ms Jennifer Engwirda on 1 May 2017 under s 90 of the Strata Titles Act 1985 (WA), as it was at the time.
The application sought an order that Ms Engwirda be allowed to inspect the records of the respondent, The Owners of Queens Riverside Strata Plan 55728 (strata company), which is the strata company of the strata titles scheme known as Queens Riverside.
The proceeding has a long history, and the only remaining task of the Tribunal is to determine whether the strata company has properly claimed legal professional privilege for eight documents (withheld documents).[1]
[1] The history of the proceeding up to 9 February 2021 and the explanation of the remaining task of the Tribunal is set out in Engwirda and The Owners of Queens Riverside Strata Plan 55728 [2021] WASAT 17.
On 6 July 2021 I decided that the claim for legal professional privilege of the withheld documents had not been properly made by the strata company and I ordered that the strata company provide inspection of those documents to Ms Engwirda.[2]
[2] Engwirda and The Owners of Queens Riverside Strata Plan 55728 [2021] WASAT 17(S).
The strata company successfully applied to the Supreme Court for leave to appeal that decision on a question of law and Tottle J remitted the matter to me for reconsideration.[3]
[3] The Owners of Queens Riverside Strata Plan 55728 v Engwirda [2021] WASC 392.
I listed the reconsideration of the matter for a final hearing before me on 7 February 2022.
On 2 February 2022 the solicitors for the strata company notified the Tribunal by email that the strata company had waived privilege over the withheld documents and provided them to Ms Engwirda. Ms Engwirda confirmed in an email to the Tribunal on the same date that she had received those documents.
The proceeding was commenced by Ms Engwirda for the purpose of being allowed to inspect the records of the strata company.
Ms Engwirda has now been able to inspect the withheld documents, which were the only records of the strata company which had not already been provided to her. That has resolved the remaining issue in dispute in the proceeding.
Therefore, I decided to dismiss the remainder of the proceeding pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) as lacking in substance and to vacate the listing of the final hearing. The order I made on 2 February 2022 was as follows.

Order

The Tribunal orders:
1.Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA) the remainder of this proceeding is dismissed as lacking in substance because the remaining issue in dispute has been resolved by the respondent providing to the applicant the documents over which it was claiming legal professional privilege.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
11 MARCH 2022

The matter before the State Administrative Tribunal was an application by Ms Jennifer Engwirda for an order that she be allowed to inspect the records of the respondent, The Owners of Queens Riverside Strata Plan 55728 (strata company). The proceeding was commenced on 1 May 2017 under section 90 of the Strata Titles Act 1985 (WA). The sole remaining issue in dispute was whether the strata company had properly claimed legal professional privilege for eight documents (withheld documents). The strata company had previously been ordered to provide those documents to Ms Engwirda but had appealed that decision.

The Tribunal was required to determine whether the claim for legal professional privilege of the withheld documents had been properly made by the strata company and, if not, whether the remainder of the proceeding should be dismissed as lacking in substance. The Tribunal reconsidered the issue on 7 February 2022. On 2 February 2022, the strata company notified the Tribunal by email that it had waived privilege over the withheld documents and provided them to Ms Engwirda. Ms Engwirda confirmed that she had received those documents.

The Tribunal decided that the strata company had not properly claimed legal professional privilege for the withheld documents. However, as Ms Engwirda had been provided with those documents, the remaining issue in dispute had been resolved. Accordingly, the Tribunal dismissed the remainder of the proceeding as lacking in substance pursuant to section 47(2) of the State Administrative Tribunal Act 2004 (WA). The Tribunal vacated the listing of the final hearing.

The Tribunal ordered that the remainder of the proceeding was dismissed as lacking in substance because the remaining issue in dispute had been resolved by the respondent providing to the applicant the documents over which it was claiming legal professional privilege.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established