FRASER and THE OWNERS OF MORGAN MEWS, STRATA PLAN 45385

[2011] WASAT 102

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   FRASER and THE OWNERS OF MORGAN MEWS, STRATA PLAN 45385 [2011] WASAT 102

MEMBER:   MS L WARD (MEMBER)

HEARD:   6 APRIL 2011

DELIVERED          :   5 JULY 2011

FILE NO/S:   CC 98 of 2011

BETWEEN:   KAY FRASER

Applicant

AND

THE OWNERS OF MORGAN MEWS, STRATA PLAN 45385
Respondent

Catchwords:

Strata titles - Strata company and strata council - Neighbours - Common courtesy and basic goodwill - By­laws - Enforcement of by-laws when breaches occur - Common property - Noise of occupiers - Daily activities of occupiers - Parking on common property - Car washing - Written permission of the strata company - Obstruction - Accuracy of minutes of meetings - appropriate forum - Appointment of an administrator - '[R]emedy of last resort' - Applicant's claims dismissed

Legislation:

Strata Titles Act 1985 (WA), s 35(1)(a), 35(1)(b), s 42(6), s 83, s 102, Sch 1, Sch 2

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Self­represented

Respondent:     Self­represented

Solicitors:

Applicant:     Self-represented

Respondent:     Self-represented

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

Gawor and The Owners of Dawesville Caravan Park Old Coast Road Mandurah, Strata Plan No 14644 [2009] WASAT 170

Parker and The Owners of Timberside Villas - Strata Plan 27426 (2006) 44 SR (WA) 282, [2006] WASAT 254

Staley v Pivot Group Pty Ltd (No 6) [2010] WASC 228

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicant, Mrs Kay Fraser, owns and lives in Unit 5 of a six lot strata complex.

2. Mrs Fraser claims that the respondent strata company has not enforced several of the standard by-laws in Sch 1 and Sch 2 to the Strata Titles Act1985 (WA). She claims that because of these failures, an administrator should be appointed to manage the strata company.

3. In summary, Mrs Fraser's complaints relate mainly to allegations of parking on common property by the occupiers of Units 3 and 6.  Mrs Fraser also complained about noise made during the day and on one occasion, at night, by the occupier of Unit 6.  Mrs Fraser also made wide ranging and general complaints about the way the strata company is managed and has conducted itself since 2004, in particular, in relation to the way the minutes were recorded at some meetings, including as long ago as May 2007.

4. On the evidence before it, the Tribunal is not satisfied that there have been any breaches of the strata by-laws in relation to noise, parking on common property and obstruction in the complex. The noise complained of by Mrs Fraser was mainly in the form of routine daily activities and occasional family gatherings. In the Tribunal's view, the noise complained of by Mrs Fraser fell well below the threshold of 'undue noise' which by-law 12(b) of Sch 2 to the Strata Titles Act1985 (WA) requires.

5. Further the claims of parking on common property and obstruction were not satisfied on the evidence before the Tribunal.  The occupiers of Unit 6 have written permission from the Council of Owners to wash cars on the common property.

6. Further, there is nothing in the evidence before the Tribunal which demonstrates that the Council of Owners has failed to discharge its obligations to enforce the by­laws in relation to parking.  In fact, there is evidence in the minutes and correspondence that the Council of Owners has been very active in this area.

7. Mrs Fraser also made general complaints about that the accuracy of the Council of Owners meeting minutes and some general meeting minutes.  The Tribunal finds that the appropriate time and place to raise issues in relation to the accuracy of minutes is at the next meeting.

8. Accordingly, the whole of Mrs Fraser's application is dismissed.

The application

1. The applicant, Mrs Kay Fraser, owns and lives in Unit 5 of a strata complex.  The complex comprises of six units.  Units 1 and 2 of the complex have street frontage.  The remaining units, numbered 3, 4, 5 and 6, share a common driveway.  The respondent is the Council of Owners (Council) which collectively represents all of the owners of the complex, and owns and controls the common property of the complex.

2. Mrs Fraser claims that the Council has not enforced several of the standard by-laws in Sch 1 and Sch 2 to the Strata Titles Act1985 (WA) (ST Act). She claims that because of these failures, an administrator should be appointed to manage the Council.

3. In summary, Mrs Fraser's complaints relate mainly to allegations of parking on common property by the occupiers of Units 3 and 6.  Mrs Fraser also complained about noise made on one occasion by the occupier of Unit 6.  Mrs Fraser also made wide ranging and general complaints about the way the Council is managed and has conducted itself since 2004, in particular, in relation to the way the minutes were recorded at some meetings, including as long ago as May 2007.

4. Mrs Fraser provided the Tribunal with the following documents in support of her application to the Tribunal:

Parking on common property

•Emails and correspondence dated on or about 24 January 2009 regarding parking on common property and a letter to all occupiers and owners.

•Unsigned letter from Mrs Fraser to the Council dated 28 January 2010 regarding parking in front of Unit 6, the tenant from Unit 4 passing in the driveway on 27 January 2010 and parking by Unit 3 on the common property between Unit 3 and 5.

•Letter dated 4 March 2010 from the Mrs Fraser to the Council of Owners regarding car parked outside Unit 6 on 23 February 2010, which blocked her approach to the garage.  Mrs Fraser asked that the Council reconsider its earlier decision of 23 February 2010, not to refer the matter to the Tribunal.

•Letters and notes from Unit 4 tenant dated 1 September 2009 and 6 June 2010 regarding parking, bible study in Unit 4 and request that Mrs Fraser stop photographing the tenant in Unit 4.

•Various correspondence from the Council to various unit holders dated 20 January 2009 and 20 September 2010 regarding the parking issues raised by Mrs Fraser.

•Several emails between Mrs Fraser and members of the Council dated between 5 October 2010 and 15 October 2010 regarding parking on common property.

•Photographs of a four wheel drive parked in front of Unit 6 between 11.38 am and 11.59 am on 2 May 2011 together with a covering email to the Council dated 16 May 2011.

Parking on Lot 5

•Letter from Mrs Fraser to the Council dated 6 January 2009 regarding tenants in Unit 3 putting wheels of their vehicle in her garden bed.  She says that this arises from a lack of space not thoughtlessness of the tenants.

•Mrs Fraser also says that visitors to Unit 3 also use the Unit 4 car bay.  Correspondence from 2009 from the owner of Unit 4 is also included.

Noise

•Letter from Mrs Fraser to the Council of Owners dated 16 August 2010 regarding noise in Unit 6's courtyard at approximately 11.10 pm on 14 August 2010 and a CD labelled 'Noise'. Claimed to be a breach of Sch 1 by­laws 1(2)(b) and 1(2)(c) and Sch 2 by­law 12(b).

•Photographs and a CD labelled 'Noise' and a CD headed 'Common Ground Parking'.

Minutes

•Minutes of Council meetings from August 2008 to 28 October 2010.

•Minutes of Annual General Meetings (AGM) from August 2008 to July 2010.

Orders sought

1. This is an application under s 83 of the ST Act for an order for the settlement of a dispute or the rectification of a complaint.

2. The application was referred to mediation on 10 February 2011.  The mediation was conducted on 11 March 2011.  The mediation was unsuccessful.  Accordingly, orders were made programming the matter for hearing on 6 April 2011.

Mrs Fraser's claims

1. As ordered by the Tribunal, Mrs Fraser provided some more specific information about the matters she claimed the Council had not attended to.  Mrs Fraser provided this information on 14 March 2011.  In summary, Mrs Fraser's claims included that:

   •Her input at most of the AGM and Extraordinary General Meetings (EGM) is met with 'hostile indifference'.  Examples of meetings include:

   •AGM held in 2 May 2007 - claim of an invalid proxy at the AGM;

   •EGM held on 6 June 2007 - Mrs Fraser's question regarding whether quotes were current or not were omitted from the minutes.  Motion not recorded accurately in minutes;

   •EGM held on 11 December 2007 - proxy for the meeting not on file and vague recording of discussion at the meeting regarding additional budget items;

   •Vehicles associated with Unit 3 parking on common property outside her unit:

   •Parked outside the Mrs Fraser's unit close to her lounge room and she hears the noise of car door slamming, people arguing and saying goodbyes, vehicles reversing and this means the peaceful enjoyment of her unit is lost.

   •Parking in front of Unit 6 on common property in 2009 and 2010;

   •4 March 2010 - photo of car parked on common property in front of Unit 6.  Mrs Fraser claimed that the car was not there for the purpose of washing it.

2. Mrs Fraser stated that her 'evidence may seem a bit light on and spread out over a long time'. However, she does not believe that the Council has met its obligations under s 42(6) of the ST Act as required by s 35(1)(a) and (b) of the ST Act. She also asked that the Council be administered by another body.

Response from the respondent and individual owners

1. In response to the more specific information from Mrs Fraser, several of the unit owners and tenants within the complex provided the letters as outlined below.  A response was also provided by the chair and treasurer of the Council.

2. Mr Krispler, as chairman, and Mrs Smedley, as treasurer, wrote a joint letter dated 23 March 2011 to the Tribunal which states in summary that:

   •The current Council were elected on 28 July 2010; therefore they do not propose to address matters raised before that time.

   •Complaints about cars reversing and people saying goodbyes are normal day to day living behaviour and not for the Council to do anything about.  Mrs Fraser is being unreasonable about this matter.

   •Mrs Fraser is the only owner in the complex that has a problem with the running of the Council.  All other proprietors and tenants are happy with the running of the Council.  The only issue is the taking of videos and photographs by Mrs Fraser, which is viewed as an invasion of privacy.

   •The Council believes that Mrs Fraser is doing a good job as a secretary.  However, members of the Council also have the right to disagree in some matters with her.

   •We feel that Mrs Fraser's request to have the strata administered by someone else would only increase fees for everyone.

3. Mr and Mrs Smedley, who own Unit 1 in the complex, wrote a letter dated 22 March 2011 to the Tribunal which states in summary that:

   •Under s 35 of the ST Act, the Council is to enforce the by-laws for the benefit of all owners, not only Mrs Fraser.

   •Schedule 1 by­law 1(2)(a) not unreasonably interfere with the use and enjoyment of others. With regard to vehicles associated with Unit 3 parking on common property near Mrs Fraser's unit, the only person being unreasonable is Mrs Fraser. The noise of cars on a driveway and noise of people living within close proximity within a strata complex is 'part and parcel of everyday life'. 'We don't know of anyone parking on common ground and leaving their car unattended on common ground'.

   •Schedule 2 by­law 1 - the tenant in Unit 6 was granted approval by the Council of Owners on 28 October 2010 to wash her car on common ground. This verbal approval was confirmed in writing by a letter dated 23 March 2011.

   •Schedule 2 by­law 2 - obstruction of common property. To our knowledge this has not happened.

   •Schedule 2 by­law 4 - Unfortunately some people have lost their cool when the Mrs Fraser has used her video camera and camera to document what she believes are breaches of the by-laws. People view Mrs Fraser's actions as a breach of their privacy.

   •Schedule 2 by­law 12 - talking to friends and saying goodbyes is not undue noise. It is part and parcel of everyday life, whether it occurs in people's units, back yards or on common property.

   •We are seeking to manage the strata in the best and most reasonable way we can.

4. Mr Krispler, who owns Unit 3 in the complex, wrote a letter dated 24 March 2011 to the Tribunal which states in summary that:

   •Parking is no longer a problem in the complex.  He is now better educated about parking.  Delivery vans use the driveway and deliver goods; they do not park there.

   •Five out of six units in the complex give and take to get along.

   •He has no problem with noise in the complex.

5. Mr Akindeju, who is a tenant in Unit 4 in the complex, wrote a letter dated 30 March 2011 to the Tribunal which states in summary that:

   •He became a tenant in the complex on 14 December 2008 and so he cannot comment on the Mrs Fraser's concerns that she had about matters from 2006 until that time; and

   •In August 2009, a friend was visiting him in the complex and they were parking their car, when their baby became very distressed and so they stopped.  Mrs Fraser appeared and took photos of the parked car, rather than offering any assistance to the family.

The hearing

1. At the hearing, Mrs Fraser's oral evidence in relation to her claims included the following in summary:

   •Schedule 1 by­law 1(2)(a) - claims that people in Unit 3 and Unit 6 park on common property in the complex

   •Schedule 1 by­law 1(2)(b) - people in Unit 6 have noisy family gatherings in the daytime usually and at night once in August in 2010

   •Schedule 1 by­law 2(c) - Unit 6 visitors blocked the driveway for Unit 4 once in May 2009

   •Schedule 1 by­law 2(d) - parking

   •Schedule 2 by­law 1 - Unit 6 twice in 2009 and recently in January 2011

   •Schedule 2 by­law 2 - Unit 6 May 2009

   •Schedule 2 by­law 4 - a Unit 6 visitor swore at her on 28 January 2010

   •Schedule 2 by­law 12(b) - noise in August 2010

2. Mrs Fraser said that she had taken her complaints to the Council and they should have enforced the by-laws correctly.  She said that soon after the hearing she was travelling overseas, and that she planned to return in or about the end of June 2011.

3. In response, Mr Krispler, who owns Unit 3 and is the chair of the Council of Owners, said in his evidence that things have got better with the parking.  He said that if the Council is not run properly then the Mrs Fraser, as secretary, is part of it.  Five of the six owners in the complex are happy with the way the Council runs things.  He says that most owners are reasonable and that he does not have any problems with noise in the complex.  He said that the photos that are taken by Mrs Fraser outside his unit were taken at a time when he was not there.  There is a sign on the driveway in the complex about no visitor parking being allowed within the complex.  He thinks that everyone, including Mrs Fraser, has to be more tolerant.  Mr Krispler said that he gave Mrs Fraser full credit for her work on the Council.  He believes that the Council is heading in the right direction.

4. In response, Mrs Smedley, who is one of the owners of Unit 1 and is the treasurer of the Council of Owners also gave evidence.  She has been on the Council since 2004 and the Council tries very hard to do the best job it can.  Mrs Fraser does not think that the by-laws are enforced by the Council of Owners because they are not enforced in the way that she would do it.  Mrs Smedley says that problems in the complex are addressed by the Council, although it may not be in the way Mrs Fraser would address the issues.  She said that she did not think that a delivery driver briefly leaving their vehicle to deliver a package was a breach of the by­laws.  The driveway is used as a driveway and that this is not a breach of the by-law.

5. In response, Ms Diamond, who lives in Unit 6, gave evidence and said that 99% of the times that Mrs Fraser claims that she was parking on common property was when she was washing her car.  When she washes her car she does not block the drive.  Other cars using the driveway can still get around her.  She also has written permission from the Council to park on the common property when she is washing her car.  For example:

   •The photos taken by the Mrs Fraser on 4 March 2010 show the paving as being darker near the car.  This is because she was washing her car there at the time the photo was taken.

   •On 2 May 2010, the car shown in the photo is her car as well.  It is registered in her name.

6. Ms Diamond said that the incident on 28 January 2010 involving her sister occurred when her sister pulled into a driveway so that the car from Unit 4 could go around.  Ms Diamond said that this is an example of her sister being a good neighbour.  Ms Diamond said there was no offence or grief caused to the people in Unit 4 and there was certainly no inconvenience to Mrs Fraser in Unit 5.

7. In relation to the complaint about noise in Unit 6, Ms Diamond refutes that they make noise on a weekly basis.  She says at family gatherings there are two small children involved.  Ms Diamond has listened to the DVD provided by Mrs Fraser.  She says that it is of four people talking in her courtyard and no music playing at all.  Ms Diamond said that she had lived in the unit for five years and that she has had no parties at all in that time.

Considerations

1. The application is brought under s 83 of the ST Act. Section 83 provides that the Tribunal may make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by the ST Act or the by­laws in connection with the particular scheme. The power vested in the Tribunal under s 83 of the ST Act is discretionary.

Living in a strata complex

1. The Tribunal has read and considered carefully all of the information provided to it by Mrs Fraser and the responses made by the various owners, occupiers and the Council.  The Tribunal has also listened to the oral evidence of each of the people who attended the Tribunal hearing and gave evidence.

2. The Tribunal notes that the parties all live within the complex of six units and that to their credit they appear to the Tribunal to be able to maintain civil and courteous relationships with one another.  Mr Krispler and Mrs Smedley were both complimentary in relation to Mrs Fraser's efforts as secretary of the Council.

3. The Tribunal notes that based on the evidence before it, five of the six occupants in the complex appear to be in a harmonious neighbourly relationship.  No other owner or occupier of the units has raised any issues in relation to the way the Council operates or issues in relation to parking and noise.  While this does not necessarily mean that these issues do not exist, it does indicate to the Tribunal that the overwhelming majority of people living in the complex are tolerant of one another and understand what it takes to live harmoniously within close range of on another.

4. A plan of the complex was provided to the Tribunal by Mrs Fraser and it is evident from the plan that occupants of Units 3 and 4 drive past Unit 5 to access their designated parking space near their units.  The Tribunal notes from the plan that Mrs Fraser's lounge and front garden are close to the driveway.  It also notes from the plan that bedroom 2 of Unit 5 is also close to the courtyard of Unit 6.  The courtyard of Unit 6 appears from the plan to be the only outside area available for occupants of the Unit 6.  The Tribunal notes that all of these features were no doubt abundantly clear to Mrs Fraser from the plans and her inspection of the property before she purchased it in 2004.

1. In the Tribunal's view, where issues, or perceived issues, arise between neighbours, then common courtesy and basic goodwill should be the starting point.  In this regard, the Tribunal notes and adopts the statement of Justice Kenneth Martin in Staley v Pivot Group Pty Ltd (No 6)[2010] WASC 228 at [165] in a case involving an easement dispute between neighbours that:

   ... Courts cannot force neighbours to act reasonably or sensibly towards each other.  A codified conduct regime by the declaration of a court is an inadequate substitute for common courtesy and basic goodwill being recognised as the expected standard of behaviour between … neighbours.

2. Further, as Member McNab stated in Gawor and The Owners of Dawesville Caravan Park Old Coast Road Mandurah, Strata Plan No 14644 [2009] WASAT 170 at [69]:

   The scope for intervention by the Tribunal in the day-to-day internal management decisions of a strata company and its Council is, under the ST Act, generally quite specific; usually quite limited; and often only available as a last resort: see, for example, the circumstances where an administrator may be appointed by the Tribunal to run the affairs of a strata company: see s 102 of the ST Act.

3. Bearing the above considerations in mind, the Tribunal will consider each of Mrs Fraser's claims below.

Parking on common property in the complex - Units 3 and 6

1. It is evident from the minutes provided by Mrs Fraser that the Council gave proper consideration to parking issues in the complex over a period of time.  As a result of this consideration, there is a sign in place at the entrance to the complex regarding visitors and parking.  Notices have also been provided to people about parking within the complex.

2. In relation to Unit 6, the minutes of the meeting held on 28 October 2010 note the resolution to give the tenants of Unit 6 permission to use the common property for car washing.  This approval was later confirmed in writing to the tenants of Unit 6.  Mrs Fraser may not agree with the Council approving this use of the common property, however, based on the information before the Tribunal, the approval was properly sought and authorised.  Accordingly, the tenants of Unit 6 are permitted to use the common property for car washing.  As it is implicit in this approval that the tenants of Unit 6 will be with the car at the time it is on the common property, they are able to move the car if it in any way impedes other cars from entering or exiting the complex.

3. In relation to Unit 3, Mrs Fraser expresses her concern about cars outside Unit 5 close to her lounge room and that she hears the noise of car door slamming, people arguing and saying goodbyes, and vehicles reversing.  In response, Mr Krispler, the owner and occupier of Unit 3, stated that these complaints were normal day to day living behaviour and not for the Council to do anything about.  The Tribunal accepts Mr Krispler's submission that the matters raised by the Mrs Fraser in relation to Unit 3 'noise' and parking issues are well within the realm of daily activities.  Based on the evidence before the Tribunal, these activities are not undue noise.  The Tribunal is not satisfied that there has been any breach of the by-laws in relation these daily activities and accordingly dismisses this claim.

4. Further any issues in relation to people accidently driving over Mrs Fraser's front garden, which is between the common property driveway and her lounge room, could be dealt with the appropriate approvals to put in place bollards or something similar to prevent this from occurring.

5. There is nothing in the evidence before the Tribunal which demonstrates that the Council has failed to discharge its obligations to enforce the by­laws in relation to parking.  In fact, there is evidence in the minutes that the Council has been very active in this area.  Accordingly, Mrs Fraser's claims in relation to breaches of the strata by-laws by the occupiers of Units 3 and 6 on the occasions identified by her are dismissed.

Obstruction on common property

1. Mrs Fraser claims that the Council has failed to enforce the by­laws in relation to obstructions on common property.  Based on the information provided by Mrs Fraser, the Tribunal takes this to mean parking on common property.  Mrs Fraser's claims of obstruction are dealt with in the paragraphs immediately above and for the reasons already given are dismissed.

Noise and behaviour of occupiers in Unit 6

1. Mrs Fraser complains that the occupants of Unit 6 are noisy. The Tribunal notes that no other occupants in the complex have made any complaints to the Tribunal or Council about noise. In the Tribunal's view, an occasional small family gathering in a courtyard, which happens to be adjacent to a bedroom window of a neighbour, does not, on the evidence before the Tribunal, come within undue noise. The Tribunal accepts Ms Diamond's evidence that in five years she has never had a party in the complex. The DVD provided by the Mrs Fraser to the Tribunal does not indicate levels of noise which in the Tribunal's view are 'undue', as required by by­law 12(b) of Sch 2 to the ST Act. This finding is also supported by the evidence from Mr Krispler and Mrs Smedley that noise is not an issue within the complex.

2. Mrs Fraser claims that Ms Diamond's sister swore at her on one occasion on 28 January 2010.  There is no independent evidence of this occurring.  Although Ms Diamond gave evidence surrounding the general circumstances of the incident on 28 January 2010 which involved her sister, Mrs Fraser and the occupier of Unit 4.  Based on the evidence before the Tribunal, it is not satisfied that Ms Diamond's sister used language or behaved in a manner likely to cause offence.

3. In summary, the Tribunal is not satisfied that there has been any breach of the by-laws in relation to noise or the behaviour of occupiers and accordingly dismisses this claim by Mrs Fraser.

Minutes of meetings

1. Mrs Fraser made general complaints about that the accuracy of the Council meeting minutes and some general meeting minutes.  The complaints are vague and general, and appear to the Tribunal to be in the nature of Mrs Fraser seeking to impose her view of what occurred at meetings.  These meetings were attended by at least two others, who have a consistent view about what occurred at the meetings, but one which differs to Mrs Fraser's recollection.  She says that the minutes do not accurately record what was said at various meetings.  The Tribunal notes that minutes are not a transcript of what occurred at a meeting.  However, the minutes should include a short summary of what is debated at the meeting, before a resolution is put.  The appropriate time and place to raise issues in relation to minutes is at the next meeting.  The amendments to the minutes are suggested at that next meeting and either accepted by the meeting or not.  In this case, the Tribunal is not the appropriate forum to deal with the accuracy or otherwise of strata minutes, some of which date back to 2007.  Accordingly, Mrs Fraser's claims in this regard are dismissed.

Conclusion

1. Having considered all of Mrs Fraser's claims, some of which relate to events occurring as far back as 2007, the Tribunal does not accept that any breach of the by-laws has occurred as claimed by Mrs Fraser.  Accordingly, it finds that the strata company has not failed to enforce the by-laws as claimed by Mrs Fraser.

2. Further, the Tribunal notes that it is accepted that an administrator should not be appointed under s 102 of the ST Act merely due to an internal conflict between owners or an allegation that a Council is not performing well. In this regard, see Parker and The Owners of Timberside Villas - Strata Plan 27426 (2006) 44 SR (WA) 282, [2006] WASAT 254 in which the Tribunal suggested that the appointment of an administrator is a 'remedy of last resort'.

3. Accordingly, the whole of Mrs Fraser's application is dismissed.

Orders

1. The Tribunal orders that:

   1.The application is dismissed.

I certify that this and the preceding [50] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS L WARD, MEMBER