ERBRICH and THE OWNERS OF 125 HERDSMAN PARADE WEMBLEY (STRATA PLAN 38066)

In this case, the respondent, Erbricht, sought a declaration from the Tribunal that the appellants, the Owners of 125 Herdsman Parade Wembley, were responsible for maintaining and repairing the timber floor decking boards and timber pergola roof louvres. The appellants argued that these items were part of the common property and thus the responsibility of the strata company. The dispute was heard in the Civil and Administrative Tribunal of Western Australia. The appellants contended that the exclusive use by-law, which was in place, did not extend to these items and thus they remained part of the common property.

The central legal issue before the Tribunal was whether the timber floor decking boards and timber pergola roof louvres were part of the common property, and therefore the responsibility of the strata company, or if they were properly classified as part of the exclusive use area, thereby placing the responsibility on the respondents. The Tribunal had to interpret the terms of the exclusive use by-law and assess whether the items in question were indeed structures that were subject to the by-law. Additionally, the Tribunal needed to consider its general powers to make orders in such disputes.

The Tribunal concluded that the timber floor decking boards and timber pergola roof louvres were not structures as defined by the by-law and were therefore part of the common property. Consequently, the strata company was responsible for their maintenance and repair. The Tribunal's decision was based on a detailed examination of the by-law, the nature of the items in question, and the common understanding of what constitutes a 'structure'. The Tribunal also noted that its powers to make orders were broad and could be exercised to ensure a fair and just resolution of the dispute.

In light of the above, the Tribunal made orders declaring that the appellants were responsible for the maintenance and repair of the timber floor decking boards and timber pergola roof louvres. The Tribunal also awarded costs to the appellants, reflecting the outcome of the proceedings.