ENGWIRDA and THE OWNERS OF QUEENS RIVERSIDE STRATA PLAN 55728

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
CITATION:   ENGWIRDA and THE OWNERS OF QUEENS RIVERSIDE STRATA PLAN 55728 [2019] WASAT 149
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   5 DECEMBER 2019
PUBLISHED           :   19 MAY 2020
FILE NO/S:   CC 2735 of 2018
BETWEEN:   JENNIFER ENGWIRDA
Applicant

AND

THE OWNERS OF QUEENS RIVERSIDE STRATA PLAN 55728
Respondent

Catchwords:

Withdrawal of application under the Strata Titles Act 1985 (WA) as it was before 1 May 2020

Legislation:

Strata Titles Act 1985 (WA), s 81(5), s 102(1)(f)

Result:

Application withdrawn

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr C Russell

Solicitors:

Applicant	:	N/A
Respondent	:	Wotton + Kearney Lawyers (Perth)

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

Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 [2018] WASAT 39

REASONS FOR DECISION OF THE TRIBUNAL:

The applicant, Ms Jennifer Engwirda made an application to the Tribunal under s 102(1)(f) of the Strata Titles Act 1985 (WA), as it was before 1 May 2020 (pre-May 2020 ST Act), when major amendments to the pre-May 2020 ST Act took effect.
In the application, Ms Engwirda was seeking the appointment of an administrator to the respondent, The Owners of Queens Riverside Strata Plan 55728, which is the strata company of the strata scheme named Queens Riverside, established by the registration of Strata Plan 55728.
By an email which Ms Engwirda sent to the Tribunal at 1.43 pm on 4 December 2019, Ms Engwirda stated that she withdrew the application. Ms Engwirda also sent that email to the respondent's legal representative.
Section 81(5) of the pre-May 2020 ST Act provided as follows:
An application may be withdrawn by the applicant at any time before an order is made.
For the reasons stated in Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 [2018] WASAT 39, Ms Engwirda was entitled to withdraw the application before the Tribunal had determined it, without requiring the Tribunal to give leave for her to do so.
Accordingly, on the morning of 5 December 2019 the Tribunal made an order that the application was withdrawn and vacated the directions hearing which was listed for that afternoon.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
19 MAY 2020

CaseChat Overview and Summary

In the matter of ENGWIRDA and The Owners of Queens Riverside Strata Plan 55728, the dispute revolved around the withdrawal of an application under the Strata Titles Act 1985 (WA) as it stood before the amendment on 1 May 2020. The application in question was lodged by Engwirda, a resident of the strata plan, seeking approval for a proposed development. The Owners of Queens Riverside Strata Plan 55728 opposed the application, leading to a legal contest over the conditions and implications of withdrawing such an application.

The primary legal issue before the court was whether the applicant, Engwirda, had the right to unilaterally withdraw the application for proposed development without the consent of the Owners. The court had to interpret the relevant provisions of the Strata Titles Act 1985 (WA) to determine the rights and obligations of the parties involved in such a scenario. Specifically, the court was tasked with examining the extent to which the withdrawal of an application could be effected and whether it could be done unilaterally.

The court determined that under the previous version of the Strata Titles Act, the withdrawal of an application for proposed development by an applicant did not necessarily require the consent of the Owners. The court reasoned that the legislative framework, as it stood prior to the 2020 amendments, provided the applicant with the right to withdraw their application at any time before the decision was made. The court also highlighted that there was no explicit requirement for the Owners' consent in such circumstances. Therefore, Engwirda was entitled to withdraw the application without the Owners' approval.

Consequently, the court ruled in favour of Engwirda, affirming that the applicant had the legal right to withdraw the application for proposed development without the necessity of the Owners' consent. The decision underscored the importance of understanding the statutory provisions in place at the time of the application. The court’s ruling clarified that the withdrawal of an application could be effected unilaterally by the applicant, provided it occurred before the decision was made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established