GAWOR and THE OWNERS OF DAWESVILLE CARAVAN PARK OLD COAST ROAD MANDURAH, STRATA PLAN NO 14644
[2009] WASAT 170
•2 SEPTEMBER 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: GAWOR and THE OWNERS OF DAWESVILLE CARAVAN PARK OLD COAST ROAD MANDURAH, STRATA PLAN NO 14644 [2009] WASAT 170
MEMBER: MR P McNAB (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 2 SEPTEMBER 2009
FILE NO/S: CC 5 of 2009
BETWEEN: MARIA KLARA GAWOR
Applicant
AND
THE OWNERS OF DAWESVILLE CARAVAN PARK OLD COAST ROAD MANDURAH, STRATA PLAN NO 14644
Respondent
Catchwords:
Strata titles - Strata companies and councils - Jurisdiction of Tribunal to intervene in daytoday management decisions of strata company - Proper form for the bringing of proceedings in such circumstances - Discretionary aspects of Tribunal's determination of applicant's claims - Applicant brought overlapping proceedings in Tribunal - Applicant's claims wide ranging and poorly drafted - Some claims settled in mediation - Procedural steps taken by Tribunal to ensure proper claims identified and particularised - Common property - Allegations of fraud - Need for proper particulars and caution in the making of allegations of fraud - Allegations of fraud on the purchase of common property not substantiated - Common property purchase may have had irregularities - Transfer registered - Whether Tribunal prevented from considering questions of title to land - Applicant's claims dismissed with common property issue the subject of further proceedings
Legislation:
Land Administration Act 1997 (WA), s 87
Strata Titles Act 1985 (WA), s 18, s 19, s 19(7), s 20, s 20(6), s 35, s 35(1)(a), s 35(1)(c)(ii), s 43(1)(b)(ix), s 51, s 90, s 102, s 121, Sch 2
Strata Titles General Regulations 1996 (WA)
Transfer of Land Act 1893 (WA)
Result:
Application dismissed in part
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr D Conway (Representative)
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Bhagat v Global Custodians Ltd [2002] FCAFC 331
Nelson and The Owners of Mt Eliza Apartments - Strata Plan 24594 [2006] WASAT 106
The Owners of 100 President Street, Welshpool, Strata Plan 13322 and Damer [2008] WASAT 258
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant, Ms Maria Gawor, is the proprietor of a lot in the Dawesville Caravan Park, which is a strata development.
She had sought the Tribunal's intervention first in 2008 and then in these proceedings in respect of her many disputes, mainly with the strata company which managed the park. These disputes ranged from the quite trivial to very serious allegations of fraud.
The Tribunal was critical of Ms Gawor's presentation of her case which was often unclear, disjointed and uneven. The Tribunal was also critical of her unnecessary use of pejorative language about third parties in her application to the Tribunal.
Apart from one matter (concerning the purchase of additional common property), the Tribunal dismissed her claims either on the ground that the Tribunal lacked jurisdiction to do what she had applied to the Tribunal for, or otherwise upon discretionary grounds. However, it was possible that in respect of some of her claims the applicant could have brought separate proceedings against other proprietors in respect of specific acts, such as the alleged breach of a particular by-law.
However, much of Ms Gawor's attack was on the strata managers who had been appointed by the owners. The Tribunal noted that 'the scope for intervention by the Tribunal in the day to day internal management decisions of a strata company and its council is … generally quite specific; usually quite limited; and often only available as a last resort'.
On the remaining question, the Tribunal found that allegations of fraud should not have been made concerning the purchase of certain additional common property. However, certain irregularities appeared to have been disclosed, and the Tribunal adjourned this aspect of the case for the parties to make further submissions to the Tribunal.
In particular, there were restrictions on the ability of the Tribunal to deal with questions of title, and this issue would have to be addressed by the parties.
Introduction
Ms Maria Gawor (applicant) is the proprietor of Lot 3 in the Dawesville Caravan Park (park). The park is a strata development governed, in part, by the provisions of the Strata Titles Act 1985 (WA) (ST Act). The respondent in this matter is the strata company which collectively represents all of the owners of the park, and owns and controls the park's common property.
The applicant has sought the Tribunal's assistance with respect to a wide range of matters and complaints. Ms Gawor is in substantial conflict with the respondent over the running of the park and some of its dealings. Her claims are often difficult to follow and are poorly drafted.
The Tribunal has determined that, apart from one matter (dealing with the purchase by the respondent of certain land as common property), she has not made out any of her claims.
Background to the Dawesville Caravan Park
In Strata Titles Referee's Matter No ST/2004-000018 (Maria Klara Gawor v The Owners of Dawesville Caravan Park Old Coast Road, Mandurah - Strata Plan 14644 and Terry Foster, 1 November 2004) (2004 proceeding) the then Referee (Mr R Kronberger) set out the following matters by way of background to the history and establishment of the park (at [8] ‑ [15] and [17] ‑ [20]):
The parcel [the subject land] is known as 'Dawesville Caravan Park' and is situated on the Old Coast Road, Dawesville, Mandurah.
It originally comprised 25 lots, 24 of which were described as 'service blocks for caravan park lots' and one lot (Lot 25) comprising a house, office, shops and workshop and a large area of land.
Lot 25 was subsequently cancelled and re-subdivided to create Lots 26 to 46.
Lot 46 was then cancelled to create Lots 47 to 87.
Lots 60 and 81 were later cancelled to create Lots 87 to 96. …
Pursuant to s 42(2) [of the ST Act] and the Transitional Provisions in Sch 3, the by-laws of the Strata Company are the 'standard' by-laws in Schs 1 and 2, [of the ST Act] subject to any amendment, repeal or addition by the Strata Company.
Notification G50936, noted on the Strata Plan on 23 June 2003, records the adoption of additional Sch 2, by-laws 15 to 18 inclusive.
Notification I302431, noted on the Strata Plan on 21 November 2002, records the deletion of the 1997 Sch 2 by-laws 15 to 18 and the adoption of replacement Sch 2 by-laws 15 to 18 inclusive plus new Sch 2, by-laws 19 and 20. …
[Ms Gawor's] Lot 3 includes a rectangular caravan site of 128 [square metres] plus a 7 [square metre] portion of an ablution block adjoining the north-western corner of the caravan site. Lot 3 has a frontage of 9.64 metres to one of the internal roads within the parcel.
The western boundary of Lot 3 abuts the eastern boundary of Lot 4. The eastern boundary of Lot 3 abuts the western boundary of Lot 2.
The Strata Plan contains an endorsement which indicates that the larger portion of Lot 3 is limited in depth and height[:] 'between 5 metres below and 4 metres above the upper surface of the ground floor of the respective adjoining lots except where covered'[.]
Pursuant to ss 3(1) and (2) [of the ST Act], the part of Lot 3 included in the ablution block is a cubic space having, as its boundaries, the upper surface of the floor, the inner surfaces of the perimeter walls and the under surface of the ceiling of the part of the building in which it is situated. Lots 4, 5 and 6 include similarly sized ablution areas within the same building. The building structure is common property for which the Strata Company is responsible.
No party has suggested that there has been any material change in respect of these matters since November 2004, and I gratefully adopt these extracts for the purposes of providing the necessary formal background to this proceeding.
In 2004, the Referee dismissed the applicant's claim, holding as follows (at [47]):
I fully appreciate [the applicant's] wish to install lattice fencing on the east side of her Lot 2 [sic, Lot 3], together with latticed gates at either end of her carport. I also accept her claim that she only used new materials in constructing the fence in question and that the fence was properly installed. I understand her wish to have an enclosure in which her dog can be kept. I also accept that some other lots may have improvements or additions which may not comply with the by-laws (although I make no specific findings in that regard), but non-compliance elsewhere in the caravan park is not a justification for the Applicant to breach by-laws and Regulations that are clear and clearly apply to her lot.
As is necessary, I will refer to other aspects of this case below.
I turn to later proceedings brought by the applicant in 2008 and 2009 in this Tribunal.
The 2008 and 2009 State Administrative Tribunal Proceedings
On 12 February 2009, a senior member of the Tribunal gave leave for the applicant to withdraw her proceeding in this Tribunal in matter CC 1250 of 2008 (2008 proceeding).
The 2008 proceeding in part bears directly on the current proceeding. It raised a raft of allegations concerning both the management of, and decisions taken by, the current respondent (The Owners of Dawesville Caravan Park, which is Strata Plan No 14644), or its managing agents.
As has been the practice of the applicant in the current proceeding, a range of matters had been raised in this Tribunal in 2008 by way of Ms Gawor filing a short summary of her complaints with lengthy supporting (and often annotated) documentation. The 2008 material is often difficult to follow. It suggested about 20 or so separate complaints, but without detailed analysis it is difficult to know the precise number of them.
This situation is not new, for in the 2004 proceeding the Acting Registrar, Mr K Bales, wrote to Ms Gawor (on 1 December 2003) in the following terms (formal parts omitted, emphasis added):
Unfortunately, it is not clear from your application what orders you are seeking from the Referee.
If, as it seems likely, you are seeking an order permitting you to retain fencing on your Lot, please supply the following:
(a)a diagram showing the position of the fencing;
(b)a specification of the fencing;
(c)a photograph of the fencing;
(d)photographs of fencing of other Lots which you say have been approved.
If you seek any other order or orders, please specify it or them precisely.
Usually, no law, rule or by-law is identified by Ms Gawor, only a comment is made by the applicant implying or suggesting an irregularity (including alleged acts of differential or unfair treatment against her). It is often not readily apparent what the precise scope of any disagreement is, the extent of it, importantly, its currency; or, also importantly, what relief the applicant seeks from the Tribunal.
This situation, generally speaking, had not been assisted by further proposed amendments to the 2008 proceeding, presumably to clarify matters that had been raised in directions hearings. Thus, in an amended application filed on 18 December 2008, the applicant sought an order from the Tribunal as follows:
To verify the legalities of the Strata Title [sic] Act 1985 - section 18(3) being used as a reference to the acquired land outside [the] front of [the] caravan park, to be now deemed as 'common property' when [s 18(1)] has not been conformed with [sic] as per correct procedures by strata management.
This matter of the status of certain common property (Lot 1653) has now become a claim in the 2009 proceedings (see further below).
Of some concern is the apparent lack of proportionality given to the complaints by the applicant. The matters raised by the applicant range from the apparently very trivial (such as the temporary blocking of the applicant's driveway 'for over an hour', a matter raised again in the 2009 proceeding) to major items of strata expenditure and procedure. Some of the attached correspondence shows a breakdown between the parties in their relationship with each other and between the applicant and other residents. Possibly, however, at least in part, the applicant is attempting to show a pattern of mismanagement or discrimination against her, warranting intervention by the Tribunal. To the extent that is necessary, this is a matter that I shall return to in the current proceeding.
It is obvious from the record that the Tribunal in the earlier 2008 proceedings spent many hours in, amongst other things, clarifying with the applicant what the substantive issues were and suggesting alternatives and possible solutions to the parties. In short, this led eventually to the withdrawal mentioned above.
Obviously, not all matters were resolved in the 2008 proceeding, for on 23 December 2008 the Tribunal received another raft of complaints from the applicant, in similar outline to the earlier proceedings. These form the basis of the 2009 proceeding.
All of my comments and observations made in relation to the 2008 proceeding generally apply to the 2009 proceeding. However, a slightly better narrative of sorts accompanied these later claims and complaints.
The 2009 claims and complaints include the following allegations:
•The incorrect use of the formal name of the respondent, as used by agents of the respondent;
•The failure of the respondent to investigate allegations against a fellow resident (at No 8) of harassment by that resident against the applicant;
•Irregularities in owner meetings; the applicant implying that meetings were 'rigged';
•Discrimination in the enforcement of rules - irregular feeding of birds by a proprietor;
•Failure of the respondent's management to attend to approve the installation of the applicant's soak-well;
•Irregular parking (No 38) and the failure of the respondent's management to enforce parking controls;
•False complaints about the applicant's dog barking;
•The unauthorised erection of a lattice fence by a former neighbouring caravan park owner (No 4);
•Possible damage to the applicant's property from children playing cricket outside her caravan;
•Unauthorised building on site (No 2);
•Subsided electricity use by caravan park residents;
•False allegations received that the applicant was taking photographs on site;
•Interference with the applicant's mail delivery;
•Improper repairs to a sink-hole in the road near the applicant's caravan;
•The ignoring or improper disposal of the applicant's correspondence to the respondent's manager;
•Failure to reimburse the applicant for the cost of an official reprint of the Strata Titles Act 1985 (WA);
•No 2's caravan is 'too close' to the roadside kerb and breaches regulatory standards of the local authority;
•The failure of three owners to adhere to a materials colour by-law (certain installations are 'brick red');
•Improper erection of a washing line;
•The failure to supply essential services; a lack of security and lack of grounds maintenance; and
•Harassment of the applicant in respect of her raising her concerns.
The 2009 application, in its original form, referred to seeking compensation from the respondent, and orders from the Tribunal requiring 'that all owners [be] treated in a respectful and professional manner by the strata company management'. In addition, the respondent's manager was alleged to be 'derelict in [the performance] of their duties'.
As has already been mentioned, on 1 November 2004 the Strata Titles Referee dismissed certain complaints of the applicant against the respondent. It appears that in the 2004 proceeding, some similar complaints (in type) were made in that forum as made here. See, for example, the references, at [32] and [48], to the alleged lack of 'consistency in the application and enforcement of the … by-laws'.
Lengthy mediation with a member of the Tribunal, in February of this year, led to the following consent order from the Tribunal dismissing a number of the 2009 claims, as follows:
(a)The name used for the strata company;
(b)Claims concerning alleged harassment by the owner of No 8;
(c)Allegations of rigging of voting at AGMs of the strata company;
(d)The cockies [bird-feeding] claim;
(e)Claim concerning drainage from the roof of No 2;
(f)Claims concerning the unauthorised erection of lattice on No 4; [and]
(g)The claim concerning alleged subsidence of part of the bitumen road next to the applicant's unit.
The consent dismissal of such claims does not of course acknowledge that the Tribunal necessarily ever had jurisdiction in relation to each and every one of the claims settled; rather, it indicates that a resolution as to some matters was reached between the parties at the mediation stage of the proceeding.
Further correspondence was received from the parties (and a third party), but it is unnecessary to go into those matters as the Tribunal ordered, on 26 February 2009, as follows (so far as is relevant):
1.By no later than 20 March 2009 the applicant must file with the Tribunal and give to the respondent strata company a statement of issues, facts and contentions (IFC) she says arise in relation to the current proceeding.
2.The purpose of this document is to crystallise and particularise for the purposes of the hearing the remaining allegations and claims in the proceeding, the precise relief sought, and in particular any relevant by-law or statutory provisions said to be breached or not enforced or otherwise in issue (as the case requires).
3.Without the need for any further order, this document shall stand in place of the current application and any associated material filed by the applicant to date, and shall not be added to as to new claims or further particulars after 20 March 2009 without the prior leave of the Tribunal.
4.By no later than 20 March 2009 the applicant must also file with the Tribunal and give to the respondent any witness statements in the matter, attaching, as necessary thereto any documents for the purposes of the hearing.
5.A necessary document (including any photograph) already filed in the proceeding must be refiled and served in accordance with this order.
6.By no later than 15 April 2009 the respondent must, in response, file with the Tribunal and give to the applicant its IFC, any witness statements in the matter, attaching, as necessary, any document for the purposes of the hearing.
7.Except by leave of the Tribunal the matter shall proceed, in relation to non[-]documentary evidence, by way of evidence in chief given in the form of a witness statement filed in accordance with these orders.
8.The matter shall be listed for a final hearing commencing at 10.00 am on 22 April 2009. …
The evident purpose of these orders was an attempt to distil both the 'remaining' complaints made, and the relief sought by the applicant. In addition, an attempt was made to reasonably limit the matters in issue by fixing a point in time for the applicant to settle upon which claims she intended to pursue. After further directions in the Tribunal, in late May 2009 it was determined that the matter would be decided upon the documents.
Applicant's allegations in 2009
As has been indicated, it is not easy to follow the applicant's various claims, even in their latest form. They are replete with a wide‑ranging and unstructured commentary; further, and regrettably, from time to time, the applicant also descends into unnecessarily pejorative language to describe various events (see, for example, the references to 'victimisation'; 'aggress[ion]'; 'slanderous accusations'; 'threats', 'contempt', 'intimidating' and the like). Such language is unnecessary and unhelpful. In any future proceedings brought by this applicant, such language, unless it can be shown to be relevant, will be likely, at a minimum, to be struck out of the proceeding.
In addition, the applicant now claims 'fraud' in respect of one transaction by the respondent. I note the following observations of the court in Bhagat v Global Custodians Ltd [2002] FCAFC 331, at [13]:
[W]e must express our concern as to the content of the notice of appeal and the written submissions. An allegation of fraud is a serious matter and must be particularised in a precise and clear manner … It is quite inappropriate and unacceptable to make an allegation of fraud without proper particulars of the conduct relied upon. In the present case [the applicant] has used the expressions 'fraud' and 'fraudulent' indiscriminately, seemingly without regard to the consequences of what is conveyed by the use of those words.
Third parties (presumably other proprietors) are sometimes named and then roped into the picture, either as fellow victims or perpetrators. There is often no attempt to explain to the Tribunal the precise status of these various persons. Generally, it is simply assumed by the applicant that what she is alleging is self-evidently clear and coherent. To the extent that the applicant has lodged letters from third parties supporting some aspect of her case or requesting that the Tribunal take some action on their behalf (or both), the Tribunal has declined to entertain such requests as they are not proper applications before the Tribunal.
In fact, a great deal of energy must be expended in distilling the true nature of each of the claims made. Even in a non‑court jurisdiction, such as here, there remains an obligation upon an applicant to recite, particularly in complex matters, allegations of relevant fact in as straightforward, neutral and logical way as is possible, without making unnecessary assumptions as to the knowledge of the reader. Such a recitation should make reference to identified legal rules (for example, any relevant by-law). Regard should be had to previous matters in the Tribunal or its predecessor body where advice has been given concerning the proper formulation of any claim. Regard should also be had to following, for example, basic reasoning such as the chronological presentation of claims with reference to, for example, the steps taken for the internal resolution of such complaints.
Doing the best the Tribunal can and working from the 'fresh' documents filed by the applicant, it appears that her current claims in this proceeding raise the following issues or complaints.
Business names of Strata Company
First, it is alleged that '[m]any varied business names' have been used incorrectly by the strata company. This claim appears to have been wholly dismissed under the mediator's consent orders of February 2009. In any event, as the respondent points out, some of the complained of names are in fact lawful business names of the strata manager, or the commercial caravan park that operates from Lot 96. The respondent says:
'Strata West Managerial Services' is the name of the company employed as the Secretary & Treasurer of the Strata Company. 'Dawesville Caravan Park & Holiday Village' is the business/operating name of the commercial caravan park located on lot 96.
The official documents (for example, the amended by‑laws dated 27 October 2002) bear the seal and the correct name of the respondent, as appears from the title search.
Although a number of receipts and notices have been issued to the applicant in the name of these 'related' businesses, these presumably reflect the internal working and agency arrangements of the managers of the site. These arrangements are presumably endorsed from time to time by the strata council. As I understand it, no objection is taken by Ms Gawor to the substance of these documents, only to their form. No suggestion is made of irregularities in the accounts of the strata company, nor that Ms Gawor has been materially prejudiced by the receipt of any such document.
Assuming that there is authority to do what the applicant asks the Tribunal to do, there is, in any event, no substance whatever in this claim and it ought to be dismissed.
Duties of Strata Company: behaviour of proprietors
The next group of wide‑ranging complaints are grouped by the applicant under the general heading of the respondent's alleged 'failure to carry out its duties' pursuant to s 35 of the ST Act. That provision deals with the 'duties of strata companies'.
The first sub-set of allegations relates to the respondent enforcing various by-laws. See ST Act, s 35(1)(a). By-law 4 (ST Act, Sch 2) is specifically identified. This is a by-law which deals with the behaviour of proprietors, residents and occupiers. However, the substance of the applicant's complaints is that the applicant has been at various times the subject of 'false accusations', 'character assassination', 'gossip', and 'slanderous accusations' of her delivering 'anonymous documentation' and trespassing.
Without either reviewing all of the various associated accusations and counter-accusations made by the parties, or considering the manifest difficulties presented by, for example, properly proving such extraordinary claims, they simply do not relate to enforcing the by‑laws or, for that matter, by‑law 4. If the applicant has been defamed, then she should go to a court for a remedy. This Tribunal has a strictly limited jurisdiction and I very much doubt that it was ever Parliament's intention that the Tribunal was to inquire either directly or indirectly into matters such as 'gossip' allegedly suffered by an owner. Neither would it be the duty of the strata company to do so.
Enforcing by-law 4 in respect of specified acts of particular 'language or behav[iour]' alleged against another proprietor is often - perhaps ordinarily - undertaken by an applicant proprietor approaching the Tribunal directly (with a properly particularised complaint), for an appropriate order against a named individual, although the strata company could bring such an action.
The applicant must be taken to understand the underlying concept of this proposition for I note that in her original 2009 application, she mentions obtaining a violence restraining order from the Magistrates Court in respect of the alleged misconduct of the resident at No 8.
Here, when one views the totality of the relationships between the applicant, the strata company (more accurately, its agents) and some of the proprietors, now going back a number of years, one could readily understand why the respondent would be reluctant to bring proceedings itself. In such circumstances, the respondent could not be said to be failing to exercise its duties or functions. (See also further below, where the nature of duties owed by strata managers to individual proprietors is discussed.)
Quite apart from any discretionary considerations, these claims, in their present form, ought to be dismissed as the Tribunal lacks jurisdiction to inquire into them. Alternatively, they should be dismissed as they are misconceived or lacking in substance.
Duties of Strata Company: building approvals and advice to third parties
The next sub-set of allegations, and under the same heading, relates to an alleged failure on the part of the respondent to advise new owners, who are buying into the park, of cases where by-law 15 had been allegedly breached. (This is a lengthy by-law purporting to regulate building submissions, the placement of certain fittings and fixtures and related matters.) Specifically, it is alleged that an owner had breached by‑law 15(5) by painting, it appears, one or more doors in other than a permitted colour of paint.
Putting aside the applicant's premise that there is a duty placed on the respondent of the type suggested, it does not appear that any particulars are given about these allegations, apart from a colour photograph showing No 37's ablution block's doors as painted 'red brick'. It may be that one is supposed to ascertain such particulars from the applicant's other allegations, to be found elsewhere in the applicant's case. This is an unsatisfactory way of making out a case in the Tribunal.
The colour at No 37 is allegedly not one expressly specified in by‑law 15(5). The proprietor of No 37 has not been heard in the Tribunal. No material has been presented by the applicant concerning the circumstances of the painting. The allegation had been previously made in the 2008 proceeding which, as we have seen, was withdrawn by the applicant.
The respondent says in reply, amongst other things, that the relevant obligations fall upon the owners and purchasers. They draw attention to, for example, Form 28 of the Strata Titles General Regulations 1996 (WA) which requires a disclosure statement as to certain matters on the purchase of a strata titled lot. As a general proposition, this position is correct.
As to the painting at No 37, the respondent says that the strata company's council,
was not informed by the owner of their intention to paint [and they] believe the colour is a close approximation to Mission Brown [a prescribed permissible colour and that they] have no objection to the colour.
Assuming for the moment that there is authority to do what the applicant asks the Tribunal to do, in these circumstances there is no proper basis for the Tribunal to interfere with any decision of the strata company. Again, it would be open to the applicant to bring, in proper form, a specific application herself against the proprietor of No 37. However, discretionary considerations (including the substantial effluxion of time; the degree of departure from the prescribed colour scheme; the applicant's previous withdrawal; and the apparent majority views of the other owners) might suggest, perhaps, that her application would be unsuccessful.
This claim, as presently formulated, should be dismissed.
Duties of Strata Company: enforcement of parking by-laws
The applicant next draws attention to by-law 16(3) which provides as follows:
PARKING
(a)No vehicle is permitted to park on [the] Common Property unless approval is given by [the] Strata Council.
(b)Visitors [are] to use [the] car park in front of [the] Caravan Park if no room [is] available on [an owner's] site.
(c)Owners [will be] held responsible for their visitors['] parking habits.
(d)No vehicle is to be parked in a manner [likely] to create an obstruction.
The applicant alleges (added emphasis):
This by-law has not been enforced across the complex. The photographs show, vehicles parked on road [sic] and without permission on owners [sic] private property. The Strata Manager advised me that the caravan park manager does not have time to 'police the parking'. Mr Butler's letter attached, shows that owners have to take matters into their own hands. Registration numbers parked at No 6 without his permission: [three number plates are listed] - as caretaker of Mr Butler's property, those are a few of many illegal parkers. However, if the vehicle is parked near my van, as was the case with Mr Sloan [see below], the manager took less than five minutes, at 9 pm to tell him to move his vehicle, while Mr Sloan was dropping off a 50 litre hot water system to me. Mr Sloan had just returned from Hyden where he purchased the unit from the motel there. The other vehicles in daylight were not questioned by management. The new owner of No 37 parks his vehicle and boat on the road whilst he washes the boat down, his mate parked on the road also in a huge work vehicle/van. Any vehicles trying to pass on the narrow strip, are forced into my garden to get through. There is obvious victimisation to anyone that attempts to hold the Strata Company Management, accountable for their actions. Mr Sloan's letter is attached, as witness no 2.
Three accompanying illustrative colour photographs are submitted, apparently relating to the conduct of the owner or occupier of No 1, as well as a statement from a Mr T Sloan, who is renting No 42.
In response, the strata company says (original emphasis):
[The] bylaw refers to parking on common property. Many owners have made arrangements with their neighbours to utilise their property in their absence. If Mr. Butler had notified the park manager that vehicles were parking on his property without his permission the matter would have been investigated. A brief description of the car & the registration number should have been reported to the office at the time of the offence so action could be taken. The strata company is unaware of any legitimate complaint regarding parking issues from owners in this area. (Several letters from owners permitting use of their sites are held on file as strata correspondence).
Tradesm[e]n, particularly with large vehicles & trailers, have to park on the roadway in some instances e.g. lawn mowing contractors, brick paving contractors etc. Exceptions must be made in temporary instances such as short term parking by service & trades people - they need to have their equipment close to the work site.
The parking policy & complaints procedures [have been discussed elsewhere] & clarified at the 2009 A.G.M.
The new owner of site 37 has since been made aware of the bylaws regarding parking on the roadways. The issue of boat washing was also addressed at the 2009 A.G.M.
Mr. Sloan's statement - The property adjacent to the water tank is part of site 96 & the lessee of that site gave permission for vehicles to park there. The description of the person who approached Mr. Sloan does not resemble the park manager & this instance was not reported to the office to enable follow up action.
Again, assuming that there is authority to do what the applicant asks the Tribunal to do, having regard to this material, in these circumstances, there is no proper basis for the Tribunal to interfere with any relevant decision of the strata company. Again, it would be open to the applicant to bring, in proper form, a specific application herself against any proprietor or occupier in respect of a breach of by-law 16(3), as it allegedly affected her. As already indicated, it is likely that discretionary considerations (broadly similar to those identified by the strata company itself in their response set out above) would influence the outcome of the application.
This claim should also be dismissed.
Duties of Strata Company: service standards of the strata manager and its agents
The next group of claims, in effect, raises service standards of the strata manager and its agent, the caravan park manager. Serious allegations are made against a named individual. The applicant complains as follows (emphasis added):
Of the 168 hours in the week, only 35 hours are covered by the Strata Company. From Monday to Friday 9 am to 4 pm. Authorisation for the [sic] 133 hours, are 'handed' to the caravan park manager who treats the owners with contempt with his aggressive and threatening attitude and manner. Mrs Susan Laurie's letter … prior to 6th April, 2009 confirms a recent incident encountered with [sic] Mr Hegarty [presumably the caravan park manager]. There is no adequate caretaking provided for owners.
The Strata Company does not take any financial responsibility for owners [sic] individual ablutions e.g[.] fixtures that are covered by them, owners are not advised what the Strata Company's Insurance covers.
The applicant then refers to s 35(1)(c)(ii) of the ST Act concerning the obligation to keep in good repair 'personal property' vested in the strata company.
In response, the respondent says:
Ms. Gawor does not understand the difference between the Strata Company, the Strata Council, the Strata Manager & the Park Manager although this has been explained to her on previous occasions …
Strata West Managerial Services are employed to carry out the duties of Secretary & Treasurer of the Strata Company. ('Strata Manager' is a term used by the Real Estate Industry). The Park Manager is responsible for the day to day running of the strata complex. He maintains security for the strata owners & does challenge people in suspicious circumstances. He refutes Ms. Laurie's account of their discussion [a witness statement is referred to].
All buildings within the complex are covered under the strata insurance as required by the Strata Titles Act. The cover implemented is discussed at the A.G.M. … each year. Ms. Gawor does not attend these meetings & has never requested any information regarding insurance. Repairs, maintenance & upkeep is the responsibility of the individual owner. This is clearly outlined in Schedule 1 Bylaw 1 of the Strata Titles Act.
[The provision of the ST Act cited by the applicant] refers to common property. (Individual ablutions are privately owned.)
The obvious friction in the relationship between the applicant and the strata managers and other agents of the strata company is a constantly recurring backdrop to the applicant's various applications and many allegations, including those already dealt with above. Indeed, in her original application, the applicant erroneously named Ms Fair (the representative of the strata manager) as a personal respondent. This was despite advice to the applicant in 2004 when the Referee observed (at [49]):
[I]t appears to me that the Applicant's nomination of Mr Terry Foster [the then park manager] as the Respondent was not appropriate, because decisions of the kind referred to by the Applicant are not decisions of a single person.
The usual relationship between individual proprietors and the strata company's management is generally indicated in this extract from the Strata Titles Institute of Western Australia's publication Role of the Strata Company Manager (2008), at page 13:
The strata company manager is not appointed to arbitrarily make up or enforce rules or to dictate the actions of owners, the Council or of the strata company. The management agreement prevents action on a request, demand, or instruction of an individual lot owner.
There is often a mistaken expectation that the strata company manager will personally deal with complaints, give free legal and other advice, enforce by-laws, evict tenants, collect debts, convene and chair meetings, inspect buildings, handle insurance and behavioural matters, correct errors made by a previous manager and resolve disputes, all without first even seeking authority from the Council. The management firm is accountable to the Council which appoints them on behalf of the strata company and should not be expected to provide insurance, legal, tax, building construction or other specialist and professional advice to the strata company. It is often the case that the clients['] best interests require that the manager out sources [sic] specialist advice and assistance.
The incorrect expectation that the strata company manager will deal with 'everything' is the cause of many complaints. Professional strata company managers take great care to avoid such misunderstandings as part of their risk management strategy.
The views set out in this passage would generally represent industry practice, subject to any specific agreement with any contracted manager. The unstated premise of this passage also illustrates a commonly held misconception of some proprietors to the effect that the strata company is somehow to be regarded as a completely separate entity with no connection or relationship between the proprietor and the strata company, the council or its agents, other than as entities which must act on the views of that proprietor. Of course, the strata company is a corporate manifestation of the collective and majority will of all of the proprietors, just as 'common property' reflects the shared ownership of such property by all proprietors.
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.
In discussing complaints by a proprietor against a strata council, the Tribunal (Senior Member Raymond) made the following pertinent observations in Nelson and The Owners of Mt Eliza Apartments - Strata Plan 24594 [2006] WASAT 106, at [73] ‑ [77], emphasis added:
Ultimately, if there is a sufficient level of dissatisfaction with the management of a council, the best forum in which that should be addressed is a general meeting of members.
This particular claim reveals a deep underlying concern of the applicants which they expressed in these terms:
'[T]his continues a habit of the council, to advance vague or deceptive agenda in budgets, and if they provide any detail, it is generally after the item has been purported to have been approved.'
If it is not acceptable to members for the council to proceed in this way, it should be addressed in a general meeting. If members in a general meeting are prepared to provide a council with a broad discretion, then it is not open to members in the position of the applicants to challenge the authority on the basis that it is broader than they might wish. It can be well imagined that in many circumstances, it is necessary to provide a broad authorisation to facilitate proper management but it is for members to determine the extent to which they wish to direct the council.
The amount expended [as alleged by the applicants in that case] was on the improvement of common property. The applicants own an undivided share of that common property and have not demonstrated that they have suffered any loss.
This claim falls to be dismissed on the basis that it is misconceived.
Here, as regards the 2009 proceeding, there is no evidence that either the strata council, or the members assembled in general meeting, or a majority of the proprietors (or even a significant number of them) necessarily share the concerns of the applicant. It does not appear that the applicant attends general meetings of the strata company (other than by or through a proxy), which, as has been indicated, is the usual forum where such concerns would ordinarily be raised by a proprietor. This is particularly so as regards any resolution for, or inquiry into, the engagement of management and related services.
Even if the Tribunal had a general power to intervene to the level that the applicant seeks (which seems a doubtful proposition), in the totality of the circumstances discussed in these reasons, I would in any event exercise my discretion not to intervene.
This claim should be dismissed.
'Restrictions on expenditure'
The next claim of the applicant is headed 'Section 47 Restrictions on Expenditure'. In fact, a miscellany of claims, many similar to those already dismissed above, are advanced under this heading:
No special sewerage levy account was raised by the Strata Company …
No two tenders are submitted to [sic] owners before works are undertaken and potential tenderers are quizzed by Mr Conway by way of 'insider trading'.
No reimbursement was given to me on my request (as advised by the counter officer at the Government Printing Office) for my purchase of the Strata Titles Act.
My cheque No 312 for $1,185.70 dated January 2009 for payment of sewerage levy fees, to date 10th March 2009 had not been presented to my bank. The cheque was with the 3 motions I sent seven days prior to the AGM in February, 2009. …
Management claiming for petrol and parking whilst attending State Administrative Tribunal, when in fact, Mrs Fair takes the train, a dayrider ticket which costs $9.00. …
The caravan park owner was exempted via a motion at the AGM - to have his unit entitlement of the levy fee, waived.
Damage to property. No action was taken by the Strata Company when I complained about cars reversing into my garden and destroying my down pipe [sic]. …
No action was taken when I complained about children playing hard ball games outside my van with the potential to damage my property. Mrs Fair just said, '[K]nock on the owner's door and tell them'[.] [W]hen I said[,] '[T]hat's not my job, it's yours[,]' she said[,] '[T]hey don't pay me enough'.
The unprofessional, intimidating and bullying behaviour of management is obvious by their attitude, such as Mr Conway [the chair of the Strata Council] saying to me[,] '[T]hey will laugh you out of court' and Mr Hegarty saying to me[,] 'SAT[,] my arse'.
The owners require intervention of the State Administrative Tribunal to assist in resolving these matters, otherwise the Strata Company Management will continue to criticise, condemn and bully the owners and make no attempt to resolve any issues.
Before dealing with a final substantive and separate issue of the improper creation of certain common property, it is convenient to add to the claims listed above the following made by the applicant at the conclusion of her document (under the heading of 'summary').
I request of the State Administrative Tribunal, [that it give] consideration to Order[ing] the Strata Company to send to all owners a copy of the original Agreement between the Strata Company and Mr Temov, the owner of the Dawesville Caravan Park. The Agreement is not readily available to owners, most of whom have never seen it. The owners need to know, why [sic] all the strata fees are paid into the caravan park, e.g [to] maintain swimming pool (which we can never get into for crowding of caravan park visitors and residents), $800.00 a year for toilet paper for caravan [p]ark ablutions, free gas supplied by strata fees for caravan park visitor sand residents etc. No strata fees are paid back into the strata complex for any improvements. As the 'Owners of the Dawesville Caravan Park' we receive no dividend or funds paid back to us.
As you can see, my concerns are quite serious and the remedy I seek from the Strata Company is an assurance that the by-laws hence forth will be enforced and enforced equitably. I seek that the Strata Company acknowledge my grievances, apologise, in writing, for its past conduct towards me and hence forth [sic] show me the proper respect due to a proprietor of the complex. When that proprietor approaches the Strata Company with a grievance seeking resolution [sic]. Any financial entitlements due to me, be reimbursed.
These wide-ranging claims illustrate the difficulties of dealing with the applicant's case, a point already made at the commencement of these reasons. Putting aside certain quite trivial allegations which are made by the applicant, more importantly, the claims also illustrate a concern about the applicant's apparent lack of understanding of the limited jurisdiction available to the Tribunal. Given that these claims are very similar to the other claims already dismissed above, for the reasons already given above, these claims will also be dismissed. The respondent has of course submitted a detailed denial, explanation or rebuttal of each of the claims (including specific reference to the events surrounding the withdrawal of the 2008 proceeding); in the circumstances it is unnecessary to reproduce or summarise that response.
The short answer to some of the applicant's concerns is that she should first raise them, preferably using neutral language, with the strata council or the proprietors assembled in general meeting. Again, for some complaints, it might be open to the applicant to bring, in proper form, a specific application herself against any proprietor or occupier in relation to, for example, damage done to her own property. However, such claims would need to be properly presented and proved, and would be subject to the same limitations and discretionary considerations identified above.
I do not rule out the Tribunal enforcing any specific obligation brought in proper form for the production to the applicant of relevant documents, being a record that she might be entitled to inspect in her capacity as a proprietor: cf s 43(1)(b)(ix) and s 90 of the ST Act, dealing with the enforcement of the inspection of 'any other record or document in the custody or under the control of the strata company'. Whether any commercial‑in‑confidence status would attach itself to any specific document (thus possibly privileging it from disclosure), a matter raised by the respondent, is a matter that would need to be explored as a discrete issue.
My initial view is that any proprietor has a material interest in all such transactions, commercial or otherwise, that might affect either their property or their associated management rights.
This does not mean that there might not be any restrictions on disclosure or further publication. Nor, does it necessarily imply that the forced disclosure of any document means that the Tribunal thereby acquires a jurisdiction to inquire into the transactions evidenced by the document or, for that matter, the provenance of the document itself. However, it is unnecessary to reach any final conclusions about these issues until the matter is properly presented to the Tribunal.
I turn to the applicant's final claim.
'Fraudulent' transfer of Lot 1653
Ms Gawor alleges irregularities in relation to the transfer of certain land to the respondent to be held as common property. Her claim is as follows:
… [s] 18(l) [of the ST Act was breached as] Form 13 and Form 14 [under the ST regulations], were lodged for [sic, with incorrect] certification by the Strata Company and stamped with the Common Seal, with false information[,] NO 'resolution was passed without dissent' as shown on these two documents. ([This is a breach] of [s] 35(1)(h)(viii) [of the ST Act which deals with the keeping of certain records].
Ms Gawor cites in support of her claim the views of Mr Vince Butler of 'VBS Property Solutions', which is the trading name of a 'Licensed Real Estate Agent'. Mr Butler apparently owns a lot in the subject property. In a letter addressed to the applicant, he alleges both negligence and fraud in relation to the following transactions:
1.Landgate have advised that a deposited plan numbered DP 59817 lodged with Landgate defines new boundaries for the Strata Scheme.
2.Land acquired and referred to by Landgate adjoins and abuts Lot 96 and is enclosed by a limestone wall which thereby does not grant access to other lot Owners as common area but provides exclusive use to the Owner of Lot [N]o. 96.
3.Form 14, of section 20 of the Strata Titles Act which pertains to a restrictive covenant dated 8th June for the benefit of the City of Mandurah, (copy attached) shows that a resolution without consent [sic], (which contravenes the Act) was passed and all necessary consents were given. The form is signed by the Owner of Lot 96, Paul Temov and chairman of the Strata Committee [sic, Council], Dennis Conway, under common seal. Take Note that at no time was any meeting held, whatsoever, or resolution passed under the provisions of the Strata Titles Act. [On the copy of the form, Mr Butler has noted that 'Landgate advised their [Form 14] has been altered and this is not legal' in reference to the obvious error whereby 'resolution without consent' appears in place of 'resolution without dissent'.]
4.Form 14 - Certificate of Strata Company, sections 19 and 20 pertains to easement on deposited plan 59816 to the Water Corporation [and] is signed by Dennis Conway as the Strata Council Chairman and Lorraine Fair as the Strata Manager under the Company Seal stating that 'a resolution without dissent was duly passed and all necessary consents were given'. Take Note that at no time was any meeting held, whatsoever, or resolution passed under the provisions of the Strata Titles Act.
5.Form 13 Certificate of Strata Company - under section 18 under the Strata Titles Act [-] is signed by Dennis Conway as Chairman and Lorraine Fair under the seal of the Strata Company stating that 'hereby certifies that the resolution authorizing the acceptance of the transfer of Lot 1653 on Diagram 43975 was a resolution without dissent. Take Note that at no time was any meeting held, whatsoever, or resolution passed under the provisions of the Strata Titles Act.
6.Easement K652416 RC - in consideration of [the receipt of] $500 [ - ] is executed by Dennis Conway as Strata Council Chairman and Paul Temov the Owner of Lot number 96 under the common seal of the Strata company which states that a resolution without dissent of the Council [sic] was agreed to. Take Note that at no time was any meeting held, whatsoever, or resolution passed under the provisions of the Strata Titles Act.
Ms Gawor does not seem concerned, for the moment, with the fate or use of the newly acquired common property, only, it appears, the process by which it was obtained. Ms Gawor produced copies of the following documents:
•A 'Form 14' (referring to s 19 and s 20 of the ST Act) executed with the respondent's common seal on 7 May 2008, and countersigned by Ms Fair and Mr Conway, recording that a resolution without dissent was passed approving of an easement 'on Deposited Plan 59816' in favour of the Water Corporation. Neither the easement nor the plan is produced. (This is the instrument referred to by Mr Butler at para 4 above, in his letter to Ms Gawor.)
•A 'Form 13' (referring to s 18 of the ST Act) also executed with the respondent's common seal on 7 May 2008, and countersigned by Ms Fair and Mr Conway, recording that a resolution without dissent was passed authorising the acceptance of the transfer of Lot 1653 on Diagram 43957 by the Minister for Lands. (This is the instrument referred to by Mr Butler at para 5 above, in his letter to Ms Gawor.)
•An instrument under s 87 of the Land Administration Act 1997 (WA) dated 24 June 2008 conveying Lot 1653 on Diagram 43975 and amalgamating this Lot with the respondent's adjoining common property, in consideration of the payment of $4,000, but subject to an easement registered in favour of the Water Corporation (presumably that already referred to). This conveyance and amalgamation order was registered with the Registrar of Titles on 25 June 2008.
Mr Butler alleges as follows:
At [t]he last AGM held on 22nd February, 2009 the Writer identified to the Strata Committee [sic] that their actions contravened the provisions of the Strata Titles Act. They were asked to present a resolution to address their misdemeanors and[,] further[,] under section 16 of the Strata Titles Act to have the unit entitlement of Lot 96, re-assessed, to take into account the exclusive use of the additional land falsely obtained. The Chairman, Dennis Conway deemed that it was not appropriate to address the aforementioned issues as neither the State Administrative Tribunal [presumably in the withdrawn 2008 proceeding] nor Landgate had expressed any concern with respect to the forms submitted.
The respondent answers as follows:
… Section 18(1) refers to the acquisition of additional common property by the strata company - the land referred to is an amalgamation of land into a lot. The owner of the lot has received a letter from Landgate confirming that all documentation for the process so far has been completed correctly. This matter was explained in [the 2008 proceeding].
The owners expressed satisfaction with the process at the A.G.M. held on the 22nd February 2009. A Resolution Without Dissent was passed at that meeting granting permission for the owner of the lot to proceed with the next stage of the amalgamation.
Prior to that resolution, Mr. Butler expressed his opinion that the process had been flawed and why that motion should not be put, while handing out copies of various documents without leave of the Chairman or Secretary, and making several inflammatory statements. However, the Chairman and Secretary have no recollection of him proposing a motion along the lines stated in his letter, i.e[.], 'to address misdemeanours' or to have the unit entitlement of site 96 reassessed. No motion was proposed by Mr. Butler. The owners rejected Mr. Butler's assertions and an owner then moved a motion to proceed with the next stage of the process to amalgamate the land into site 96 at no cost to the strata company. The owners verified their acceptance of the proposal by a unanimous show of hands. Mr. Butler did not protest and the motion was carried without dissent.
The minutes of the AGM of 22 February 2009 record as follows (at page 8):
Land Transfer - Mr. Vince Butler circulated copies of documents pertaining to the acquisition of the [C]rown land & implied that the strata council were in breach of Section 18 of the Strata Titles Act. The chairman reiterated that the process involved amalgamation of a reserve, not purchase of additional property. A letter from Landgate confirms the correct procedure has been followed.
Moved KEITH FLEAY 2nd DEBRA BALA that the owners grant permission for Mr. Temov to proceed with next stage of the process to amalgamate the land, now known as common property, into site 96 at no cost to the strata company.
MOTION CARRIED WITHOUT DISSENT
Mr. Temov thanked the owners for their support.
It is not clear to the Tribunal what the 'next stage' is, however the discussion minuted suggests that members were aware that an initial transfer had taken place. It is not clear what formal steps are in fact being taken to change the status of this land from that of common property. It is not clear who paid the original $4,000 to the State of Western Australia or whether it is proposed that such a sum or another amount be paid for the surrender of the common property. I speculate that Mr Temov might have paid the sum upon the basis that he would in due course receive the transferred land without any further payment in an amalgamation of the land with his lot. The respondent may have negotiated an arrangement with Mr Temov that may have benefited the proprietors.
I am not suggesting that there is anything necessarily improper in any of this; in any event, all of this is speculation at the present.
I mention that such a proposal for the transfer of common property would require a resolution without dissent: see s 19 of the ST Act. Unlike perhaps this case, the Tribunal's jurisdiction might be invoked so as to prevent any registration of such a transfer until such a resolution in proper form was obtained. Relevant dissent might then lead to proceedings in the District Court which, unlike this Tribunal, is a costs jurisdiction: see, ST Act, s 51.
A letter dated 24 December 2008 from the Acting Manager for State Land Services - (South West Division) in the then Department for Planning and Infrastructure, addressed to Mr Temov, states as follows:
I refer to our discussion yesterday and confirm that all the conditions and requirements detailed in a 'Letter of Offer and Acceptance' dated 14 December 2007 were complied with and documentation for registration was lodged with Landgate.
The respondent has produced the original letter dated 14 December 2007. That correspondence refers to Crown or State Reserve 33060 being 'available for sale to [and subsequent 'amalgamation with'] adjoining owners, being freehold Lot 305 on Strata Plan 14644'. An estimated purchase price plus taxes and charges in the sum of $4,777 is referred to. (As I have already indicated, it is not clear who paid this money to the State.) Two encumbrances are identified: the easement to the Water Corporation and a restrictive covenant or memorial, presumably in favour of the City of Mandurah (as mentioned above), restricting access to the Old Coast Road. Unfortunately, the completed offer and acceptance form has not been presented by any party.
Ms Gawor has referred her allegations to both the WA Police Major Fraud Squad and to the Real Estate and Business Agents Supervisory Board. Both organisations have declined to take action on Ms Gawor's complaints.
A perusal of the minutes of the AGMs for 2007 and 2008 does not disclose, so far as I can see, any specific resolutions of the types contemplated in the Form 13 and Form 14 certificates received by the Tribunal. As no other relevant minutes have been produced, it suggests the possibility that, prior to the execution of them in May 2008, no such resolution was passed in the form required by the ST Act, at least at an AGM in the last three years. This is not to say that the substance of these decisions was not reported on or discussed at an AGM (perhaps in connection with another item of business), or that, instead, the strata council purported to pass the resolutions, and that fact was subsequently reported upon to an AGM for, in effect, endorsement. The 2009 minutes imply that possibility, as the tenor of them suggests that members were being updated on something that had been raised before.
As I have indicated, there might be several explanations for this state of affairs, all of which are a long way from allegations of fraud. At the moment, the best that could be said is that the certificates appear to be inaccurate, or incorrectly record certain events. Such mistakes could well be the product of errors made in good faith.
It was therefore completely unnecessary of the applicant to allege fraud in such circumstances.
The certificates might have some other formal errors on them. No material has been furnished showing that Ms Fair is a member of the strata council (the minutes do not record her being elected to council), yet she has countersigned both certificates, presumably thinking that she held some authority from the strata council to do so. Although Mr Conway and Mr Temov are both members of the council, their certificate has an obvious error referring to 'without consent' for 'without dissent'. Again, these errors were most likely made in good faith. In any event, such matters of form are probably not fatal to the certificates (I express no concluded view on this), but the question of the existence of the appropriate resolutions is altogether another matter.
Yet, what is clear is that the certificates, amongst other documents, have led to the registration by the Registrar of Titles showing, subject of course to the provisions of the Transfer of Land Act 1893 (WA), that, so far as the respondent's title is concerned, the conveyed lot now forms part of its common property, as presumably will now appear on the deposited plans or diagrams. This seems to me to be the effect of the conveyance and amalgamation order registered on 25 June 2008.
Moreover, in the cases of the creation of the easement and restrictive covenant referred to above (but not in the case of the acquisition of the former reserve land - Lot 1653 - as common property - cf s 18 of the ST Act) the certificates are deemed to be 'conclusive evidence' of the matters certified 'in favour of the Registrar of Titles' and those dealing with the land: s 20(6) of the ST Act. Section 19(7) has the same effect in relation to the disposal of common property.
On the face of it, the Tribunal has no power to make any order that could affect, perhaps even indirectly, the respondent's title. This is because, quite apart from the effect of the Transfer of Land Act 1893 (WA), s 121 of the ST Act imposes a significant restraint on the jurisdiction of the Tribunal. This section provides as follows:
121.State Administrative Tribunal not to have jurisdiction where title to land in question
Notwithstanding any other provision of this Part [dealing with the resolution of disputes], the State Administrative Tribunal shall not have jurisdiction under this Part in any case in which the title to land is in question otherwise than for the purpose of determining any matter before the State Administrative Tribunal and any determination made by the State Administrative Tribunal shall not have any force or effect except as provided by this Act.
In The Owners of 100 President Street, Welshpool, Strata Plan 13322 and Damer [2008] WASAT 258, Member Carey said, at [20], (emphasis added):
The issue of whether or not adverse possession can apply to strata titled land is an open one. But it is not one upon which the Tribunal can engage, due to the legislative exclusion from the jurisdiction of the Tribunal 'in any case in which the title to land is in question' which appears in s 121 of the ST Act. Any such question is within the exclusive provenance of the courts.
In the light of these complexities and uncertainties, the Tribunal will need to hear from the parties as to what course it should now adopt as to this part of the applicant's case. The parties are urged to seek appropriate advice on this issue before returning to the Tribunal.
Conclusions
For the reasons given above, apart from one matter, the applicant has not made out her case. The application will, to that extent, be dismissed. On the question of the disposition of the remainder of the claim relating to the transfer of Lot 1653, the matter will be listed for directions.
Orders
The Tribunal orders that:
1.The applicant's claims, other than that relating to the transfer of Lot 1653, are dismissed.
2.The applicant's claim relating to the transfer of Lot 1653 is listed for further directions on 17 September 2009.
I certify that this and the preceding [104] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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