| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : GAWOR and OWNERS OF DAWESVILLE STRATA CARAVAN PARK OLD COAST ROAD MANDURAH, STRATA PLAN 14644 [2011] WASAT 136 MEMBER : MR P McNAB (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 23 AUGUST 2011 FILE NO/S : CC 219 of 2011 BETWEEN : MARIA GAWOR Applicant
AND
OWNERS OF DAWESVILLE STRATA CARAVAN PARK OLD COAST ROAD MANDURAH, STRATA PLAN 14644
First Respondent
DENIS CONWAY
PAUL TEMOV
Second Respondents
Catchwords: Strata titles - Strata companies - Decision of annual general meeting - Proposal to transfer common property - Resolution without dissent required - Veto of transfer exercised by minority lot holder - District Court's jurisdiction to
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override veto - Whether Tribunal may force strata company or named individuals to bring suit in District Court at behest of minority lot holder - District Court's jurisdiction limited to a member of the majority only - No jurisdiction in Tribunal to order strata company to make application - No jurisdiction in Tribunal to order named individual to bring suit - Applicant's motives to 'expose' strata management - Motives would militate against exercise of jurisdiction in any event - Application misconceived and lacking in substance - Application dismissed Legislation: Strata Titles Act 1985 (WA), s 3AC, s 19, s 51, s 51(1), s 83(1) Result: Application dismissed Category: B
Representation: Counsel:
Applicant : Selfrepresented
First Respondent : Mr R Kronberger
Second Respondents : N/A
Solicitors:
Applicant : Self-represented
First Respondent : Atkinson Legal
Second Respondents : N/A
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
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 This was an application by a dissentient lot holder in a strata plan to force the body corporate and others to bring an application to the District Court to override the minority's veto of the transfer of certain common property. The applicant in this Tribunal had opposed the transfer and was one of the minority votes. 2 The applicant's true motive appeared to be the attempted ventilation in the District Court of her long-standing grievances against the strata company management. 3 The Tribunal found the application was misconceived and lacking in substance. This was for two main reasons. First, the statutory provision under the Strata Titles Act 1985 (WA) did not extend to the strata plan's body corporate. Secondly, the Tribunal observed: As to the balance of the application, this Tribunal manifestly does not have the jurisdiction to force a person to exercise their rights under s 51(1) of the ST Act, particularly with all that that undertaking may entail. That that should be done at the behest of a person who may be joined as a party in opposition and who, in any event, will presumably want the application to fail (their veto of the proposal, in this case, being a matter of record) illustrates the 'Alice in Wonderland' nature of the application. 4 Accordingly, the Tribunal dismissed the application.
The application 5 Ms Maria Gawor has applied to the Tribunal for an order apparently relating to matters arising out of the orders made in a previous matter brought by her in this Tribunal: Gawor and The Owners of Dawesville Caravan Park Old Coast Road Mandurah, Strata Plan No 14644 [2009] WASAT 170 (Gawor). 6 These reasons should be read in conjunction with that decision, particularly at [82] - [102]. 7 The final orders in Gawor were as follows: (Page 4)
2. The applicant's claim relating to the transfer of Lot 1653 is listed for further directions on 17 September 2009. Supplementary to those orders, the following further orders made on 17 September 2009 stated: 1. The following final orders of the Tribunal are supplementary to those of the Tribunal made on 2 September 2009, which orders were published with the reasons for decision in the matter. 2. Subject to paragraph 3 of these orders, the balance of the applicant's claim is dismissed upon the basis that the Tribunal lacks jurisdiction to deal with that remaining part of the claim as it raises a question of title to land. 3. The Tribunal notes the undertaking proffered by or on behalf of both the respondent and the interested third party (Mr Temov) to the effect that no registration of instruments sufficient to defeat the jurisdiction of the Tribunal (if any), will take place until consideration by either an AGM or an EGM of the proper resolutions to effect a disposition of common property. 8 The new application attempts to invoke s 83(1) of the Strata Titles Act 1985 (WA) (ST Act) in purported furtherance of part of the matters dealt with in Gawor. Section 83(1) is the general power of the Tribunal to make, with various limitations, orders '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 this Act or the by-laws'. 9 Ms Gawor has named in this proceeding the strata company as the first respondent, and Mr Denis Conway and Mr Paul Temov as the second respondents. These parties featured in Gawor. 10 The application to the Tribunal seeks the following relief: Subsequent to the [supplementary orders in Gawor] the strata company to date [has] not made application to the District Court to have the resolution passed as required by s 51(1) of the [Strata Titles Act 1985 (WA)]. The information attached by the strata company verifies two owners disagreed, thereby, no 100% pass [sic] of resolution was obtained … 11 The application was lodged a few days before the annual general meeting (AGM) of the strata company held earlier this year and, it appears, according to Ms Gawor, that despite the company 'present[ing] the resolution again' at that AGM it will be 'avoiding it's [sic] responsibility to s 51(1) [sic]'. (Page 5)
12 Section 51 of the ST Act provides as follows (emphasis added): Jurisdictional objection 13 In its initial response to the application the first respondent, by its solicitors, said: (Page 6)
power under section 51 to make such an application. Similarly, Mr Temov is not entitled to make such an application because he is not a lot proprietor. Finally, section 51 provides only an option, not an obligation, to make such an application. 14 The Tribunal decided to receive written submissions from each party and to determine the preliminary issue on the documents.
The applicant's case 15 It appears that a resolution to transfer a strip of land (held as common property) was presented to the AGM in February of this year. Section 19 of the ST Act requires a resolution without dissent for such a transfer. 16 Ms Gawor did not attend the AGM. There was passed at that meeting, I am informed, a resolution approving the transfer. However, Ms Gawor has purported to exercise her right under s 3AC of the ST Act to subsequently dissent from the proposed resolution. 17 For the purposes of this application I have therefore assumed that no such resolution has been passed with the prescribed majority. Thus, prima facie, a person 'included in the majority in favour of the resolution', that is, a person to whom s 51(1) applies, could apply to the District Court for the authorisation of 'the particular act proposed', namely, the transfer. 18 I have previously remarked, in Gawor at [9], that Ms Gawor's claims in the Tribunal can be 'often difficult to follow' and are often 'poorly drafted'. See also my comments in Gawor at [20] . 19 In her written submissions to the Tribunal in this case, Ms Gawor reveals that the 'reason' for her application to this Tribunal is to 'expose' the strata company management and other named persons in respect of their alleged 'inconsistencies and contradiction [sic] of their actions … over the last seven years'. 20 Some of these allegations were previously raised in Gawor. However, Ms Gawor has at least taken heed of the Tribunal's warning from that case and refrained from labelling some of these actions as 'fraudulent', in the absence of any evidence at all to justify her suspicions. 21 For good measure, the respondent's solicitor (a former Strata Titles Referee) is said by Ms Gawor to have a 'conflict of interest'. His 'input', it is alleged, may mean 'that justice may not be served'. The Tribunal is called upon to prevent this. It is true that some seven or eight years ago (Page 7)
Ms Gawor received a ruling from the Referee in a matter involving the same strata plan (see the reference in Gawor at [13]), and that this Tribunal had taken over the Referee's jurisdiction under the ST Act. However, it is difficult to see how such matters have any connection whatever to the present case that would warrant either any concern or the need for further inquiry.
The first respondent's case 22 After setting out certain factual matters by way of background and drawing attention to the applicant's past dealings with the Tribunal and its predecessor (matters of record), the first respondent says: On the basis that the Order sought is not one that has any substance or, if it can be interpreted as an application for an order that the First Respondent or either of the Second Respondents make an application to the District Court under section 51(1) of the ST Act, it is not an order that the Tribunal may make, the application appears to be frivolous, vexatious, misconceived or lacking in substance in the terms of section 47 of the SAT Act and should be dismissed.
Analysis 23 The order sought by the applicant appears to be directed at forcing certain persons to make an application to the District Court for the approval of the transfer. 24 One may speculate that in Ms Gawor's mind that when such a matter were placed before the District Court then the various complaints and concerns that she has continued to remonstrate about would be ventilated in an independent forum. Presumably, she would ultimately seek for the Court to refuse the application because of such matters. 25 However, as the first respondent points out, s 51 of the ST Act is essentially a provision which gives the District Court, on the application of a certain class of persons only, jurisdiction to override the veto exercised by other members of the strata company, and then only in relation to a specific proposal. Moreover, and importantly, those persons who may apply to the court do not include the strata company itself. On this ground alone, so much of the application as is directed to the first respondent is doomed to fail. 26 As to the balance of the application, this Tribunal manifestly does not have the jurisdiction to force a person to exercise their rights under s 51(1) of the ST Act, particularly with all that that undertaking may entail. That that should be done at the behest of a person who may be (Page 8)
joined as a party in opposition and who, in any event, will presumably want the application to fail (their veto of the proposal, in this case, being a matter of record) illustrates the 'Alice in Wonderland' nature of the application. 27 That an application to the Court might be the only eventual course for the majority in order to obtain lawful authority for a transfer of common property does not thereby give the Tribunal jurisdiction to mandate that solution for them. I should add that, in the alternative, bringing the matter back to another general meeting would seem to be a perfectly acceptable option, but again not one that could be imposed by order of the Tribunal. 28 And, even if the Tribunal did have such a jurisdiction, Ms Gawor's true motives in the matter, combined with her past conduct, might make the exercise of discretion in her favour problematic, to say the least. 29 Accordingly, the application is wholly misconceived and lacking in substance and ought to be dismissed.
Order 30 For the reasons given above, the Tribunal orders as follows: 1. The application is dismissed because it is misconceived and lacking in substance. |