GIABENI PTY LIMITED and THE OWNERS OF 30 COODE STREET MOUNT LAWLEY STRATA PLAN 11321 - [2024] WASAT 105

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   GIABENI PTY LIMITED and THE OWNERS OF 30 COODE STREET MOUNT LAWLEY STRATA PLAN 11321 [2024] WASAT 105
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   17, 18 AND 19 JUNE 2024
DELIVERED          :   18 SEPTEMBER 2024
FILE NO/S:   CC 1339 of 2023
BETWEEN:   GIABENI PTY LIMITED
Applicant
AND
THE OWNERS OF 30 COODE STREET MOUNT LAWLEY STRATA PLAN 11321
Respondent

Catchwords:

Strata Titles Act 1985 (WA) - Scheme dispute - Fencing - Decorative screens - CCTV - Pergola/patio - Driveway - Whether repair/upkeep or alteration/improvement - Use and enjoyment of common property - Exclusive use area - By-laws - Proper construction of by-law - Whether breach of by-law - Whether in keeping with the strata complex - Functions of strata company - Whether resolution contravenes strata company duty regarding common property - Objectives of strata company - Whether resolution contravenes strata company objectives - Reimbursement of cost of report - Tribunal proceedings - Statutory discretion to make declarations and orders to resolve scheme dispute or proceeding

Legislation:

Dividing Fences Act 1961 (WA)
State Administrative Tribunal Act 2004 (WA), s 46(2), s 47
Strata Titles Act 1985 (WA) (prior to 1 May 2020), s 35(1), s 35(1)(c), s 42
Strata Titles Act 1985 (WA), s 3, s 13, s 14, s 43, s 43(1), s 44, s 47, s 47(1), s 47(2), s 47(5), s 91, s 91(1)(b), s 91(1)(c), s 119, s 197(1), s 197(1)(a)(ii), s 197(2), s 197(4), s 198(5), s 199, s 199(1), s 199(3), s 199(3)(a), s 200, s 200(1), s 200(2), s 200(2)(m), s 200(7), s 202, s 209, Sch 1, Sch 2, Pt 4, Div 4, Pt 8, Div 1
Strata Titles Amendment Act 2018 (WA)

Result:

Application partly successful

Category: B

Representation:

Counsel:

Applicant	:	Mr GJ Douglas and Ms K Muller
Respondent	:	Mr J O'Connor

Solicitors:

Applicant	:	Douglas Cheveralls Lawyers
Respondent	:	Taylor Smart

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

Adder Holdings Pty Ltd and The Owners of Harbour Pines Strata Plan 23297 [2022] WASAT 120
Ainsworth v Albrecht [2016] HCA 40; (2016) 261 CLR 167
Aussie Airlines Pty Ltd v Australian Airlines Ltd and Others (1996) 68 FCR 406
BendallHarris v Aitken [2008] WADC 112
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2017] WASCA 104
Dworakowski and The Owners of 63 Temple Street Victoria Park Strata Plan 26070 [2020] WASAT 45
Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2023] WASAT 37
Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25
Hapgood-Strickland and The Owners of 119 Doveridge Drive Duncraig (Strata Scheme 12286) [2024] WASAT 65
Hopkins and Clayton [2007] WASAT 255
Jarvis and The Owners of Horizon Apartments on Central Strata Plan 53941 [2023] WASAT 117
Tax Practioners Board v van Dyke [2024] FCA 899
The Owners of Broome Beach Resort Strata Scheme 32190 and Waydanette Pty Ltd [2022] WASAT 56
The Owners of Mandurah Terrace Apartments Strata Plan 17113 and Russell [2009] WASAT 1
The Owners of Matilda Units, Strata Scheme 33443 and Metzger [2023] WASAT 114

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In 1914 the adage, 'good fences make good neighbours' came to life when the American poet, Robert Lee Frost, penned the poem, 'Mending Wall'. It is a poem about neighbours coming together each Spring to mend the fence that separates their properties. The core issue in this proceeding concerns fences and whether the fences need mending.
The applicant, Giabeni Proprietary Limited as trustee for the CH9803 unit trust[1] (Giabeni) is the owner of Lot 12 on strata plan 11321 (strata plan).
[1] All the units in the CH9803 unit trust are held by a corporate entity as trustee for a discretionary family trust where Ms Jocelyn O'Donnell is the primary beneficiary (ts 120, 18 June 2024).
The respondent is The Owners of 30 Coode Street Mount Lawley Strata Scheme 11321 (strata company). The strata company is the body corporate established under s 14 of the Strata Titles Act 1985 (WA) (ST Act) on registration by the Registrar of Titles of the strata titles scheme on 24 February 1983 and comprises 16 lots (strata scheme). It is located in the suburb of Mount Lawley, and is described on the strata plan as follows:
Brick and iron home units wholly contained within the external boundaries of portion of Swan Location Y and being Lot 100 on Diagram 64201.
Apart from the core issue concerning the fencing around Lot 12's Exclusive Use Area (created by Sch 1 by-law 16 which is discussed in greater detail later in these reasons) and elsewhere on the common property and whether the fencing needs replacing including whether the delay by the strata company has been unreasonable (the fencing issue), there are two other issues in dispute between Giabeni and the strata company. They are as follows.
There is an issue concerning whether the four notices alleging breach of the scheme by-laws are valid, and if so, whether Giabeni, by the actions of Ms Jocelyn O'Donnell,[2] contravened scheme by-law 16 or whether what was done was nothing more than upkeep or maintenance (the bylaw issue).
[2] Also referred to as Ms Jocelyn Shanks in the HB (for example at page 290). I am informed Ms Jocelyn Shanks and Ms Jocelyn O'Donnell are one and the same person. In these reasons I use the name Ms O'Donnell.
The final issue concerns whether Giabeni is to be reimbursed for a report requested that concerns the fencing issue (the reimbursement issue).
On 28 October 2023, Giabeni commenced the proceeding in the Tribunal under s 197(4) of the ST Act to resolve a scheme dispute at the strata scheme.
Giabeni says orders from the Tribunal are necessary because the strata company has not demonstrated a genuine attempt to maintain the common property.[3]
[3] HB at page 34.
The strata company disagrees and urges the Tribunal not to overturn the strata company's decisions and submits that their course of action taken to date is reasonable in the circumstances.[4]
[4] ts 153, 19 June 2024.
The proceeding comes within the Tribunal's original jurisdiction (s 209 of the ST Act).
I heard the matter over three consecutive days from 17 to 19 June 2024, following which I reserved my decision.
For the following reasons, Giabeni's application in regards to the fencing issue is successful. However, Giabeni's application in regards to the by-laws issue and the reimbursement issue are both unsuccessful.

Orders sought

It is useful to start by setting out the orders sought by Giabeni.
On 13 June 2024, Ms O'Donnell informed the Tribunal that Giabeni was no longer seeking orders 6 and 8 as set out in its original application. By order, on 13 June 2024, I gave leave for Giabeni's application to be amended by removing orders 6 and 8 and the associated grounds. This leaves the following six orders that Giabeni is seeking in the proceeding (amended orders):[5]
[5] HB at pages 30 and 1269 (order 3 of the orders made by the Tribunal on 20 March 2024).
1.To accept the quote from Brownes Fencing (quote 11814) in the amount of $7,480.00 to replace the damaged, cracked and failing asbestos fencing at the Exclusive Use Area of Lot 12 immediately using existing funds.
2.To accept the quote from Brownes Fencing (quote 11813) in the amount of $12,750.00 to replace the damaged, cracked and failing asbestos fencing at the exclusive use areas between Lots immediately after order 1 is attending to using existing funds.
3.To replace other areas of damaged, cracked and failing asbestos fencing as required and in accordance with approvals from neighbours under the Dividing Fences Act.
4.To raise a special levy if inadequate funds exist to replace the fencing (item 3 above).
5.To reimburse the owner of Lot 12 for the dilapidation report by WML Consultants regarding asbestos fencing at the strata complex of 7 July 2022 in the amount of $605.00
[6.Withdrawn]
7.A declaration that the owner of Lot 12 has not contravened the [ST] Act or strata company by[-]laws by:
a.Attaching decorative screens in the Exclusive Use Area of Lot 12 permitted under Schedule 2 [b]y[-]law 15.
b.Installing CCTV (that complies with the requirements of the Surveillance Act) in the Exclusive Use Area of Lot 12 permitted under Schedule 2 [b]y[-]law 15.
c.Maintaining the exclusive use carport driveway grey consistent with the colour of fresh concrete and fencing at and around the Lot required by [Schedule 1 [b]y[]law 16.
d.Painting the patio in the Exclusive Use Area of Lot 12 permitted under Schedule 1 [b]y[-]law 15 and 16.
In closing submissions counsel for Giabeni submits that the amended orders sought by Giabeni (as set out above) can be distilled to the following two main issues:[6]
(a)the requirements of s 91 of the ST Act of a strata company to keep in good and serviceable repair, properly maintain and, if necessary, renew and replace, common property and what the proper application of this provision means in relation to the common property fencing at the strata complex; and
(b)the scheme's by-laws and whether or not the actions of Giabeni are in breach of those by-laws.
[6] Applicant's closing submissions handed up at hearing on 19 June 2024 at pages 1 to 2.
Counsel for the strata company submit that declarations and orders should be made against Giabeni as follows:
(a)pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and s 198(5) of the ST Act to dismiss the application concerning the fencing issue;
(b)pursuant to s 199(3)(a) of the ST Act to declare that Giabeni has breached by-law 16 concerning the two decorative screens, the pergola/patio, driveway and the CCTV cameras;
(c)pursuant to s 200(1), s 200(2)(m) and/or s 47(5) of the ST Act, order Giabeni to:
(i)remove the two decorative screens;
(ii)repaint the pergola/patio and return it to its original colour;
(iii)remove the paint from the driveway and return it to its original state;
(iv)remove the CCTV cameras; and
(v)make good the common property; and
(d)dismiss the reimbursement claim as either misconceived or lacking in substance or that the nature of the dispute is nothing more than trivial under s 47 of the SAT Act.

Relevant procedural history and evidence

Following referral to mediation on 29 November 2023, which did not resolve the dispute, the Tribunal made its usual orders programming the matter through to a final hearing. Included in the orders was an order requiring the strata company to give to each of the lot owners in the strata scheme, apart from Giabeni, a copy of Giabeni's application to the Tribunal and the amended orders sought and inviting the lot owners to participate in the proceeding as a party. No other lot owner sought to participate in the proceeding. I have therefore proceeded on the basis that there are no other interested owners in the current application (CC 1339 of 2023).
In addition, on 20 March 2024, at the request of Giabeni, I permitted the issue of a summons to require Mr Mike Rossiter of the QIA Group to attend the final hearing to give oral evidence. I also permitted the issue of a summons to require two strata managers to attend the Tribunal to give oral evidence but in the end, Giabeni did not summons them. Further, on 20 March 2024, at the request of counsel for the strata company, I permitted the issue of a summons to require Mr Kasinathan Rajaram of WSP Australia Pty Ltd to attend the final hearing to give oral evidence.
As is usual with these types of matters before the Tribunal, all the documents filed with the Tribunal were taken into evidence (noting that submissions are not evidence). In making my decision for the Tribunal, I have had regard to the documents which at the final hearing, the Tribunal marked as exhibits as follows:
Exhibit 1Hearing Book (prepared by the Tribunal) dated 13 June 2024 (pages 1 to 1275) (HB);
Exhibit 2ASIC company extract on 13 June 2024 for Giabeni Pty Ltd (filed by Giabeni on 14 June 2024);
Exhibit 3Asbestos survey and health and safety observations in common areas at the strata complex prepared by WSP Australia Ltd dated 14 November 2023 – colour copy of the report to replace black and white copy in HB at pages 621 to 658 (handed up by counsel for the strata company at the final hearing on 17 June 2024);
Exhibit 4Income & Expenditure Statement for the period 1 October 2023 to 29 May 2024 - report generated on 29 May 2024 (handed up by counsel for the strata company at the final hearing on 17 June 2024); and
Exhibit 5Email from Ms Christine Gow, SVN Strata Management to undisclosed recipients with the date 17 June 2024 and time 8.42 am and with the subject heading: 'Fencing proposal' (comprised of five pages) and Balance Sheet as at 31 May 2024 - report generated on 17 June 2024 (handed up by counsel for the strata company at the final hearing on 18 June 2024).
I had the benefit of the affirmed oral evidence of the following expert witnesses:
(i)Mr Rossiter who has 35 years' work experience with the Tasmanian Fire Service and the Queensland Fire and Rescue Service. Following that he joined QIA Group to undertake fire and safety inspections which involves evacuation training and safety reports. Mr Rossiter filed his report dated 7 February 2023.[7] At the final hearing, Mr Rossiter confirmed the contents of his report. Mr Rossiter described his report as a 'workplace health and safety' desktop report and which he completed from comments and photographs provided to him by an inspector (name unknown to Mr Rossiter) who visited the strata complex. Mr Rossiter gave evidence, by reference to the photographs provided to him, that the fencing is leaning, there are cracks and a piece is missing in the bottom of the fence, all of which are a cutting hazard, a trip hazard and a falls hazard. Mr Rossiter recommended that the fencing is moderately deteriorated, and it should be 'repaired as soon as possible'[8];
(ii)Mr Stephen Russell Woodhouse who is the principal structural engineer for WML Consultants Pty Ltd with over 40 years' work experience as a structural engineer in Australia and overseas. Mr Woodhouse filed his report dated 19 March 2024.[9] At the final hearing, Mr Woodhouse confirmed the contents of his report. Mr Woodhouse gave evidence that he carried out a visual inspection of about one hour of the fencing at the request of Ms O'Donnell on 7 September 2022 and concluded that the fencing is structurally unsafe and dilapidated and should be replaced.[10] Mr Woodhouse said there were a number of areas where he saw horizontal cracks and other areas where he saw vertical sheer cracks. In addition, Mr Woodhouse said he observed fencing panels leaning and which were loose in the ground. He opined that about 15 to 20% of the fencing panels are defective. The consequence of this, according to Mr Woodhouse is that those fence panels with cracks or panels loose in the ground could fail under some very modest loading conditions (eg wind) or hand pressure; and
(iii)Mr Rajaram has qualifications in environmental engineering management, water engineering, chemical engineering and petrochemical technology and is a licensed asbestos assessor. Mr Rajaram filed his report dated 17 October 2023.[11] At the final hearing, Mr Rajaram confirmed the contents of his report. Mr Rajaram is employed as an associate consultant with WSP Australia Pty Ltd. Since 2007, Mr Rajaram has undertaken over 500 risk assessments including the creation of asbestos and hazmat registers as well as site specific scope of works for remediation works. Mr Rajaram attended the strata complex in October 2023 for the purpose of undertaking an asbestos and safety inspection of the common property as well as inspecting inside three Lots. Mr Rajaram gave evidence that while he identified non-friable ACM asbestos types (where the asbestos is mixed with a bonding agent) he gave a risk rating of low to medium and that replacement of the fencing was not required but rather the labelling, sealing/encapsulating of the exposed or damaged material along with decontaminating the surrounding area as soon as practicable would be sufficient remediation.
[7] HB at pages 200 to 212.
[8] ts 51, 18 June 2024.
[9] HB at pages 720 to 803.
[10] ts 59, 18 June 2024.
[11] HB at pages 622 to 658.
Further, I had the benefit of the affirmed oral evidence of the following lay witness:
(i)Ms Arnah Barbouttis who is the owner of Lot 7 on the strata plan and has been a member of the council since December 2021. Ms Barbouttis filed a witness statement dated 31 May 2024.[12] At the final hearing, Ms Barbouttis confirmed the contents of her witness statements. Ms Barbouttis gave evidence about the fencing and about the alleged contravention by Ms O'Donnell of various by-laws.
[12] HB at pages 1196 to 1225.
Finally, I acknowledge the submissions of counsel for each party which greatly assisted me in my determination of the issues.
I will now set out the key issues to be determined, followed by the legal framework relevant to these proceedings by reference to the relevant regulatory framework, and I will then make relevant findings of facts. Finally, I will address the issues.

Issues

In their respective Statement of Issues Facts and Contentions, the following three issues were agreed by the parties to be key issues in the proceeding:[13]
[13] HB at pages 31 and 809.

Issue 1: Whether the failing and damaged asbestos fencing at the Exclusive Use Area of Lot 12 requires immediate attention?
Issue 2: Whether Giabeni should be reimbursed $605 for a fencing dilapidation report?
Issue 3: Whether Giabeni complied with Sch 2 by-law 15 regarding:
(a)attaching decorative screens;
(b)installing CCTV;
(c)painting the exclusive use driveway; and
(d)painting the patio at Lot 12?

Giabeni contends the following further issues also require determination:[14]
Issue 4: Whether other areas of failing and damaged asbestos fencing within the scheme require attention?
Issue 5: Whether damaged and failing asbestos boundary fencing requires attention under the Dividing Fences Act 1961 (WA)?
[14] HB at page 31.
The strata company disagrees with issue 4 and 5 and says that the following further issues require determination:[15]
[15] HB at pages 811 to 812.
Issue 6: Whether the resolution of the strata company, made on 2 November 2023, for the council to prepare and present to the owners a plan for replacement of the fencing throughout the parcel, including at Lot 12, is a contravention of s 91 or s 119 of the ST Act?
Issue 7: Whether a resolution of the strata company approving expenditure to immediately replace the fencing at Lot 12 would be a contravention of s 119 of the ST Act?
Issue 8: Whether Giabeni has contravened the scheme's governance by-law 16 by:
(a)installing two decorative screens within the exclusive use carport of Lot 12;
(b)painting the driveway within the exclusive use carport of Lot 12 a grey colour;
(c)painting the pergola/patio within the exclusive use courtyard of Lot 12 a charcoal/grey colour; and
(d)installing six CCTV cameras within the exclusive use carport and courtyard of Lot 12?
Issue 9: Whether the Tribunal should exercise its discretion pursuant to s 200(1), s 199(3)(a), s 200(2)(m) and/or s 47(5) of the ST Act to declare that Giabeni has contravened Sch 1 by-law 16 and make the remediation order sought by the strata company?
Issue 10: Whether the installation of the six CCTV cameras installed by Giabeni within the exclusive use common property carport and courtyard, or on the external walls of the building, of Lot 12 is an improvement or alteration of the common property which was not authorised by resolution of the strata company, or by the council of owners of the strata company and if so, what is the appropriate relief to be ordered by the Tribunal?

In the reasons which follow, I will answer the above issues under the following three broad key headings or key issues (as identified above at [4] to [6]):
•Fencing issue;
•By-law issue; and
•Reimbursement issue.
It is first necessary to set out the regulatory framework and factual background against which the consideration of the above issues must be made.

Regulatory framework

The strata plan

On 24 February 1983, the strata plan was registered by the Registrar of Titles.
By way of transfer (instruments C 455689 and C 455690) certain sewerage rights were granted to the Metropolitan Water Authority. The transfers were registered by the Registrar of Titles on 18 November 1982.
By notification (instrument G695854) there was a change to the scheme by-laws with the addition of Sch 1 by-law 16 - Allocation of an Exclusive Use Area. The notification was registered by the Registrar of Titles on 23 January 1998.
Finally, by notification (instrument J555693) there was a further change to the scheme by-laws with the addition of Sch 1 by-law 17 - Insurance Excesses, Sch 1 by-law 18 - Recovery Of Expenses, Sch 1 bylaw 19 - Sundry Items On Common Property For Sole Use Of A Lot, Sch 1 by-law 20 - Internal Surfaces and Sch 1 by-law 21 - Speed Limits On Common Property. The notification was registered by the Registrar of Titles on 19 January 2006.

ST Act

Tribunal proceedings

Part 13 of the ST Act deals with Tribunal proceedings.
In proceedings under the ST Act, the Tribunal may make any order it considers appropriate to resolve the dispute or proceeding (s 200(1) of the ST Act). The types of orders that the Tribunal may make are set out in s 200 of the ST Act and include, for example, an order under s 200(2)(m) of the ST Act requiring a person to take specified action or to refrain from taking specified action to remedy a contravention or prevent further contraventions of the ST Act or scheme by-laws. In addition, the Tribunal may provide that the order is to remain in force for a specified period, until a specified event or until further order (s 200(7) of the ST Act).
Instead of, or in addition to any order that the Tribunal may decide to make to resolve the dispute or proceeding, s 199 of the ST Act provides that the Tribunal may make a declaration concerning a matter in the proceeding. An example of a declaration that the Tribunal may make is to declare that a specified person has or has not contravened a specified provision of the ST Act, or the scheme by-laws (s 199(3)(a) of the ST Act).
Finally, it is also possible for the Tribunal to make a decision not to make an order or declaration. This is provided for in s 202 of the ST Act.

Principles in exercising the Tribunal's discretion to make an order

The power of the Tribunal to make an order under s 200(1) of the ST Act to resolve the dispute or proceeding is a statutory discretionary power.
In Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25 at [34] to [43] the Tribunal's statutory discretionary power was explained as follows:
34The term 'discretion' was explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [200] HCA 47; (2000) 203 CLR 194 at [19] as follows:
'Discretion' … refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result". Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable … [or] it may be quite narrow[.]
35…
36… However, that is not to say that the statutory power is not without limitation. As stated by French CJ in Minister for Immigration and Citizenship v Li[2013] HCA 18 (Li) at [23] every statutory discretion, however broad, is constrained by law.
37Legal reasonableness provides the boundaries within which a decision-maker such as the Tribunal has a genuine free discretion: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at [505 and Li at [23]. To determine the boundaries of the statutory discretionary power, regard must be had to the scope, subject matter and purpose of the statutory scheme that creates and confers on the Tribunal a discretion to make an order: Li at [67].
38The scope and purpose of the ST Act provides limits on the exercise of the statutory power by the Tribunal. By its long title, the ST Act is to provide for, among other related purposes, for the subdivision of land by strata titles schemes, the creation of strata titles and the governance and operation of strata titles schemes.
…
41Importantly, in exercising its statutory powers, the Tribunal must do so reasonably: Li at [23]. The same was said in the earlier decision of Kruger & Ors v The Commonwealth of Australia (1997) 190 CLR 1 where Brennan CJ stated at [36]:
[W]hen a discretionary power is statutorily confined on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised[.]
42In other words, the statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably …
43… [T]he Tribunal in making its decision as to whether or not to exercise its statutory discretionary power to make an order, must ultimately take all considerations into account.
In Hapgood-Strickland and The Owners of 119 Doveridge Drive Duncraig (Strata Scheme 12286) [2024] WASAT 65 (HapgoodStrickland) the Tribunal at [50] to [51] referred to BendallHarris v Aitken [2008] WADC 112 where Bowden DCJ was considering whether to make an order deeming a resolution to have passed as an unanimous resolution. His Honour held that in order for such an order to be made, the following four factors must be considered:
(a)the detriment to any owner and the extent, if any, to which it could be said to derogate from the owner's proprietary rights;
(b)the extend of any costs to the owners;
(c)the formalisation of longstanding informal arrangements; and
(d)the creation of certainty between owners and thereby reducing disputes.
I will apply the above principles and factors in determining whether or not to exercise the Tribunal's statutory discretionary power under s 200(1) of the ST Act to make an order to resolve the dispute or the proceeding.

Principles in exercising the Tribunal's discretion to make a declaration

Like the power of the Tribunal to make an order under s 200(1) of the ST Act is a statutory discretionary power, the power of the Tribunal to make a declaration under s 199(1) of the ST Act is also a statutory discretionary power.
In Adder Holdings Pty Ltd and The Owners of Harbour Pines Strata Plan 23297 [2022] WASAT 120 the Tribunal summarised the rules for granting declaratory relief espoused by Lockhart J in Aussie Airlines Pty Ltd v Australian Airlines Ltd and Others (1996) 68 FCR 406 at 415 (Aussie Airlines), as follows:
(a)the proceeding must involve the determination of a question that is not abstract or hypothetical. There must be a real question involved, and the declaratory relief must be directed to the determination of legal controversies … The answer to that question must produce some real consequences for the parties;
(b)the applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' … or if the Tribunal's declaration will produce no foreseeable consequences for the parties;
(c)the party seeking declaratory relief must have a real interest to raise it; and
(d)generally, there must be a proper contradictor.
Most recently, in Tax Practioners Board v Van Dyke [2024] FCA 899 (Van Dyke), Abraham J held at [84] that the power to grant declaratory relief 'is a very wide one' and is 'limited only but its discretion'. His Honour made the statement in the context of the Federal Court of Australia Act 1976 (Cth). In my view the power to grant declaratory relief under s 199(1) of the ST Act is similarly very wide.
According to Van Dyke at [84], the following three requirements need to be satisfied before a declaration can be made:
(a)the question must be a real and not a hypothetical or theoretical one;
(b)the applicant must have real interest in raising it; and
(c)there must be a proper contradictor.
The above requirements are the same or are very similar in terms to the requirements raised in Aussie Airlines. In addition, in Van Dyke at [84], the court went further to state that other factors relevant to the exercise of the discretion include:
(a)whether the declaration will have any utility;
(b)whether the proceeding involves a matter of public interest; and
(c)whether the circumstances call for the marking of the [Tribunal's] disapproval of the contravening conduct.
Finally, where a party has chosen not to oppose a grant of particular declaratory relief it is not an impediment to such relief being granted: Van Dyke at [84].
I will apply the above principles and factors in determining whether or not to exercise the Tribunal's statutory discretionary power under s 199(1) of the ST Act to make a declaration to resolve the dispute or the proceeding.
Next, I set out the factual background before considering the issues.

Factual background

Many of the key facts were agreed by the parties or are uncontentious facts. I make the following findings of fact which are relevant to determining the issues under three broad headings (see above at [27]).

Fencing issue

There is approximately 231 metres of fencing throughout the parcel, which divides the courtyards of the 16 lots and serves as the boundary fence with the five neighbouring properties (fencing).
Much of the fencing is on the common property.
The fencing is approximately 40 years old.
The fencing is made from 'Super 6' or 'HardieFence' panels and asbestos which is no longer available.
Mr Wal Dobrow, a certified practising valuer of Reserve Funds Plan inspected the strata complex on 16 June 2020 and provided the strata company a '10 Year Reserve Fund Plan' for the strata complex. In the plan, Mr Dobrow described the fences as being in an 'average condition' and allowed $3,300 (and an escalated amount of $4,904) for the repair of the fences in year nine of the plan, that is, by September 2029. Included in the plan, Mr Dobrow allowed for:
•removal of the asbestos fence (broken) in year 1, if required.
The minutes of the Annual General Meeting (AGM) held on 2 December 2021 under Item 11 record the following regarding the 'old asbestos fence':
This issue is listed in the 10 Year Plan & will be considered by the Council of Owners when they review the plan.
Ms O'Donnell asked the then strata manger (Plantinum Strata Management) by email on 15 December 2021 when would the fencing be repaired as she was concerned with the: [16]
…placement and misuse of green waste bins that back up against an asbestos fence that potentially release dangerous fibres and the leaning and damages [sic] fencing around unit 12.
[16] HB at page 137.
No expert report was attached to Ms O'Donnell's email of 15 December 2021 to support her concerns about the fencing. Rather, all that was attached to that email was an email of 14 December 2021 from Mr Dobrow, who prepared the 10 Year plan for the strata complex in 2020, and the 10-year plan. Mr Dobrow stated in his email in part:[17]
… I agree that as a starting point the fencing is common property … I have allowed $3,300 for the repair of fencing and a further $1,600 for the removal of any broken asbestos fencing, and these figures are at the lower end of the range[.]
[17] Ibid.
By email on 12 February 2022, Ms O'Donnell wrote to the strata manager informing of quotes she had obtained from Brownes Fencing (quote Q10186 dated 9 February 2022), Prowest Fencing (quote 10748 dated 19 January 2022) and Teamwork Fencing (quote by email dated 11 January 2022).[18]
[18] HB at page 123.
In reply, Mr Nigel Jenkins of Platinum Strata Management by letter dated 16 March 2022 wrote to all the owners stating in part:[19]
RE: Asbestos Fences – SP11321 (30 Coode Street)
The Council of Owners understands that some owners have been contacted regarding the replacement of the asbestos fences in the complex. The contact was not authorised by the Council of Owners (COO) or your Strata Manager.
However, any owner who is concerned about the asbestos fence at their property is asked to inform the Strata Manager by 1 April 2022 …
Inspection by an expert will then be arranged and will form the basis of the COO decision as to the action required, if any[.]
[19] HB at page 133.
On 7 May 2022, Ms O'Donnell by email to the new strata manager, Ms Christine Gow of Gow Property, followed up on her email of 12 February 2022.[20] In reply on the same date, Ms Gow stated that she was awaiting instructions from the council.[21]
[20] HB at page 113.
[21] HB at page 113.
On 6 July 2022 by email Ms Gow informed Ms O'Donnell that:[22]
… [T]he 'Strata Company accept no liability for any report that you are choosing to obtain without approval from the Strata Company and also wish to request that any reports obtained by you personally are not done under the guise as a representative of the Strata Company of which you are not as you are an elected member of the Strata Company. The CoO [council] are the elected representatives of the Strata Company and will action matters as they see fit and what the CoO determine to be in the bests [sic] interests of the Strata Company. Your motion will be tabled at the AGM and owners will be given a copy of this email.
[22] HB at page 121.
On 7 July 2022 Ms O'Donnell replied to Ms Gow by email where she stated:[23]
I will rely on expert opinions regarding fencing … rather than actions taken as the [c]ouncil [..] sees fit[.]
[23] Ibid.
Consequently, without the authority of the council, Ms O'Donnell engaged Mr Woodhouse to inspect the strata complex. Mr Woodhouse inspected the strata complex on 7 July 2022.[24]
[24] HB at page 181.
On the material before the Tribunal, it is not clear on what date Ms O'Donnell provided to the strata manager or the council the letter (undated) from Mr Woodhouse which refers to an inspection done on 7 July 2022. It appears the letter was prepared by Mr Woodhouse on 7 September 2022 as stated in his report dated 19 March 2024.[25]
[25] HB at page 723.
On 8 September 2022 Ms O'Donnell by email wrote to Ms Gow and to the council asking for the following resolution to be put at the next AGM:[26]
1.As the fencing in situ is likely to contain asbestos and is failing throughout the complex (as supported by WML Consulting Engineers and the attached documents), that owners by ordinary resolution agree to replace all Hardiflex fencing with Colorbond in a colour to be determined by owners, and paid for using existing Reserve Funds on hand[.]
[26] HB at page 122.
On 6 December 2022 Ms O'Donnell wrote to the council stating her concerns about the: [27]
asbestos fencing and the need to replace this dangerous product have not received any response[.]
[27] HB at page 135.
On 9 February 2023, the council issued the agenda for the AGM to be held on 1 March 2023. Agenda items 19 and 20 concern replacement of the fencing. The letter (undated) from Mr Woodhouse which references an inspection done on 7 July 2022 along with Ms O'Donnell's email of 12 February 2022 and the various fencing quotes were attached to these agenda items.[28]
[28] HB at pages 217 and 290 to 305.
Agenda item 19 provides:[29]
19.FENCING REPLACEMENT 1
Motion on notice – Ordinary Resolution
As the fencing in situ is likely to contain asbestos and is failing throughout the complex (as support by WML Consulting Engineers and the attached documents), that owners by ordinary resolution agree to replace all Hardifence [sic] fencing with [Colorbond] in a colour to be determined by owners, and paid for using existing Reserve Funds on hand.
Reference Appendix 7 for WML Consultants Report & Email from Lot 12
[29] HB at page 217.
Agenda item 20 provides:[30]
20.FENCING REPLACEMENT 2
Motion on notice – Ordinary Resolution
As all visitor parking onsite at the complex has a brick wall with adjacent garden beds except for visitor parking near unit 12 (and the binds), that owners by ordinary resolution agree to replace the Hardifence [sic] adjacent to unit 12 with a brick fence and garden bed consistent with other visitor parking and further to use existing funds for this work not exceeding $7,000.
[30] HB at page 217.
The resolutions for agenda items 19 and 20 were both defeated at the AGM held on 1 March 2023.[31]
[31] HB at page 337.
The proposed budget for the period 1 October 2022 to 30 September 2023 for the strata company is set out in agenda item 22 for the AGM held on 1 March 2023. Included in agenda item 22 is the following motion in regards to maintenance and repair requirements for the common property:[32]
22.2Consider all maintenance and repair requirements for common property.
FENCING REPLACEMENT
Adopt a resolution to accept a quote not exceeding $57,000 (based on the All Fencing Quote) to supply and install [Colorbond] fencing with funds to be raised by Special Levy based on Unit Entitlement[.]
[32] HB at page 218.
Giabeni voted in favour of the above motion for item 22.2, however it was defeated 9:2.[33]
[33] HB at page 337 to 338.
On 16 May 2023 Ms O'Donnell by email to Ms Gow and the council asked the following question:[34]
Please advise when the asbestos fencing at 30 Coode Street Mount Lawley will be attended to. As the item has been budgeted and approved by owners for this year it is appropriate to carry out these works. Please confirm the Council of Owners will undertake its obligation to get these works carried out as required by legislation[.]
[34] HB at pages 143 to 144.
On 16 May 2023, Ms Gow in reply by email stated:[35]
A quote has yet to be accepted however once any works have been agreed upon, all owners will be notified and if there is insufficient monies to pay the account, a special levy, may need to be raised.
The majority of owners voted on the budget at the AGM of which you were present for.
[35] HB at page 143.
Giabeni filed (lodged) two applications with the Tribunal. The first application (CC 1061 of 2023) was filed on 29 July 2023 under s 197(4) of the ST Act to resolve a scheme dispute or proceeding whereby Giabeni sought an order of the Tribunal to appoint an administrator for the strata company because of concerns about:
… the serious issue with the asbestos fencing at the complex and the strata company agreed to attend to these works and has set aside $40,000 for legal fees to communicate with neighbours regarding their responsibility to contribute. No work has been done to any asbestos fencing.
That application (CC 1061 of 2023) was resolved at mediation on 26 September 2023 where Giabeni was given leave to withdraw the proceeding and the proceeding was dismissed under s 46(2) of the SAT Act.[36]
[36] HB at page 463.
Giabeni filed the current application (CC 1339 of 2023) with the Tribunal on 28 October 2023. In the current application, Giabeni seeks under s 197(4) of the ST Act for the resolution of a scheme dispute or proceeding concerning, among other disputes, the dispute to 'replace the damaged, cracked and failing asbestos fencing' (see above at [14]).
A further AGM was held on 2 November 2023.[37]
[37] HB at pages 513 to 575.
The minutes of the AGM held on 2 November 2023 reflect the following resolution was carried in regards to the 10 Year Plan.[38] All owners voted in favour, apart from Giabeni who abstained.
5.10 YEAR PLAN & BUILDING INSPECTION
…
It was resolved that funds not exceeding $30,000.00 are to be paid from the Reserve fund for works identified in Year Four of the 10 Year Plan.
It was agreed that any monies not utilized in the respective year are to be carried over for works in the following year[.]
[38] HB at page 514.

The minutes of the AGM held on 2 November 2023 reflect the following resolution was carried in regards to fencing.[39] All owners present at the meeting voted in favour, apart from Giabeni.
6.3PROPOSED BUDGET FROM 2024
…
It was explained and discussed that fencing at the complex would involve a phased approach over two or more years and that details of the fencing plan prepared by the Council of Owners would be provided to all owners by June/July 2024.
It was flagged that a special levy may be required for all or some of the fencing works once the report from WSP [Australia Pty Ltd] has been received which will detail the sections of fence by priority[.]
[39] HB page 515.
On 17 June 2024, just before the commencement of the first day of the final hearing of the current application, Ms Gow emailed to the owners a 'fencing proposal'. The email reads:[40]
[40] Exhibit 5.
To all owners of Strata Scheme 11321 (30 Coode Street (4 Third Avenue), Mt Lawley
You may be aware that replacement of the fencing at the complex has been, and still is, a core subject of a State Administrative Tribunal (SAT) hearing.
Following the SAT hearing in September 2023, [the other proceeding CC 1061 of 2023] it was agreed that the strata council would endeavour to circulate to owners the resolution/s and information relating to the proposed replacement of the dividing asbestos fences throughout the property by July 2024.
It was also discussed at the November 2023 Annual General Meeting (AGM) that fencing at the complex would involve a staged approach over two or more years and that details of the fencing plan prepared by the Council of Owners would be provided to all owners by June/July 2024. The staged approach is based on the WSP Asbestos Register/Health & Safety Observations report (available on the strata portal under "Building Reports"), which indicates that the asbestos fencing is low risk.
It was noted that a special levy may be required for all or some of the fencing works pending a report from WSP, which has since assessed the fencing throughout the complex as "low-risk". We should have enough in the reserve fund to carry out Stage 1 without the need for a special levy.
As of the 31/05/2024 Balance Sheet (attached), we have $15,471.14 in the administration fund, and $36,829.32 in the reserve fund, totalling $52,300.46. Another $12,000 is expected from the upcoming quarterly levies.
We have sourced a variety of quotes, and decided on $24,630 from Brownes Fencing for Stage 1. We will obtain quotes for Stage 2 once Stage 1 is complete.
The owner of 8 Third Avenue has been notified of his contribution towards the fencing replacement.
In the coming weeks we intend to hold an Extraordinary General Meeting (EGM) where you will be given the opportunity to discuss and vote on the proposed plan. A representative from SVN, our Strata Management Company, will contact you with further details.
Attached to these reasons, at Appendix A, is the 'Replacement of Super-Six fencing/Hardifence with Colorbond: proposal' dated 14 June 2024 (fencing proposal), that was attached to Ms Gow's email of 17 June 2024 to all the owners.

By-laws issue

On 6 February 2024, the strata company issued to Giabeni four breach notices in relation to Sch 1 by-law 16 for the:
(a)alleged installation without written approval of the strata company of six CCTV cameras within the courtyard and carport of Lot 12;
(b)alleged installation without written approval of the strata company for two decorative screens within the carport of Lot 12;
(c)alleged painting the driveway within Lot 12 a grey colour without the written approval of the strata company; and
(d)alleged painting the pergola/patio within the courtyard of Lot 12 a charcoal/grey colour without the written approval of the strata company.

Reimbursement issue

Giabeni ordered a dilapidation report from WML Consultants Pty Ltd on or about 7 July 2022.
On or about 7 September 2022 (as stated in Mr Woodhouse's report of 19 March 2023), WML Consultants Pty Ltd issued to Giabeni a two page letter (undated) referring to an inspection undertaken on 7 July 2022.
On or about 7 September 2022, Giabeni provided the two page letter (undated) from Mr Woodhouse to the council.
On 19 March 2023 WML Consultants Pty Ltd issued to Giabeni invoice 30181 in the amount of $605 for the 'Fencing Report' which was managed by Mr Woodhouse ($605 invoice).
The minutes of the AGM held on 1 March 2023 at item 18 reflect the members of the strata company voted 9:2 against reimbursing Giabeni for the report from WML Consultants Pty Ltd. The motion put to the AGM was: [41]
Motion that by ordinary resolution the owners of 30 Coode Street Mount Lawley strata plan 11321 agree to utilise existing funds for the replacement of asbestos fencing as per the recommendations of WML Consultants and to reimburse the owner of Unit 12 for obtaining the report and to recover from neighbours their share under the Dividing Fences Act.
K Martin queried who requested that the report be completed and it was noted that J O'Donnell arranged the report without approval from the Strata Company.
[41] HB at page 337.
I now turn to address in turn each of the issues under the three broad key headings (see above at [27]).

Consideration

Jurisdiction

Neither party challenged the jurisdiction of the Tribunal. However, before considering the issues for determination, I must first be satisfied that the Tribunal has jurisdiction to resolve the dispute between Giabeni and the strata company.
Giabeni made its current application to the Tribunal under s 197(4) of the ST Act seeking the resolution of a scheme dispute or the proceeding.
Section 197(1) of the ST provides for the resolution of certain 'scheme disputes' including a dispute between scheme participants about the performance of, or the failure to perform a function conferred or imposed on a person by the ST Act or the scheme by-laws (s 197(1)(a)(ii) of the ST Act).
I am satisfied that the Tribunal has jurisdiction under s 197(4) of the ST Act to determine the dispute between Giabeni and the strata company. The dispute in this case concerns whether the fencing around Lot 12's Exclusive Use Area and elsewhere on the common property requires replacement and whether the strata company has been unreasonable in attending to the fencing issue. There is also a dispute as to whether or not Giabeni has breached Sch 1 by-law 16. Finally, there is a dispute as to whether the strata company is required to reimburse Giabeni $605 for the fencing report prepared by Mr Woodhouse. These disputes combined are the 'scheme dispute' to be determined under s 197(4) of the ST Act.
Giabeni and the strata company are the 'scheme participants' as that term is defined in s 197(2) of the ST Act. This is because Giabeni is the owner of Lot 12 in the strata scheme (and has been the owner since 9 December 2021). The strata company is expressly listed as a scheme participant in s 197(2) of the ST Act.
Finally, s 197(4) of the ST Act provides that an application to the Tribunal may be made by a party to the dispute for the resolution of a scheme dispute. I am satisfied that Giabeni is a party to the dispute and made the application to the Tribunal.
I am also satisfied that the Tribunal may make any order and/or declaration that it considers appropriate to resolve the scheme dispute (s 199(1) and s 200(1) of the ST Act). I will return to the Tribunal's discretionary statutory power to make orders and declarations later in these reasons.
I now turn to consider the issues in turn.

Fencing issue

Dismissal application by strata company

I will start with the strata company's application to have the fencing issue dismissed under s 47 of the SAT Act and/or s 198(5) of the ST Act.
In Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2023] WASAT 37 at [28] to [34] the Tribunal set out the factors to consider when deciding whether to dismiss part or all of a proceeding under s 47 of the SAT Act. It is not necessary to repeat the factors here other than to note that a decision to dismiss a proceeding should only be taken after very careful consideration of the case and where it is clear that there is no realistic prospect of success.
Section 198(5) of the ST Act provides:
(5)In addition to the circumstances in which the State Administrative Tribunal Act 2004 section 47 applies, that section applies to a scheme dispute if the Tribunal —
(a)is not satisfied that the nature of the dispute is more than trivial; or
(b)is not satisfied that the applicant has an interest in the matter that is more than trivial and warrants recourse by the applicant to the Tribunal; or
(c)is satisfied that the purpose of the application is to harass or annoy, or to cause delay or detriment, or is otherwise wrongful; or
(d)is satisfied that the nature and gravity of the dispute is such that it is reasonable to expect the parties to resolve the dispute without recourse to the Tribunal.
I do not accept the strata company's position that the fencing issue should be dismissed under either s 47 of the SAT Act or under s 198(5) of the ST Act. The reasons are as follows.
First, I am not satisfied that the nature of fencing issue is trivial. There is a real contest, as explained below, between the parties as to the fencing issue and whether the fencing has to be renewed or replaced.
Second, I do not find that Giabeni's application to the Tribunal is to harass or annoy or to cause delay or detriment or is otherwise wrongful. I accept Giabeni is genuinely concerned about the fencing at the strata complex.
Third, I am not satisfied that the fencing issue is frivolous, vexatious, misconceived or lacking in substance or is being used for an improper purpose or is otherwise an abuse of process.
Finally, while it is unfortunate that the parties themselves could not resolve their dispute concerning the fencing issue, I am not satisfied that the gravity of the dispute is such that the parties should be expected to resolve the dispute without recourse to the Tribunal.
In conclusion, I am satisfied that this is not a case to dismiss the fencing issue under either s 47 of the SAT Act or s 198(5) of the ST Act.

Contentions

It is common ground that much of the fencing is on the common property[42] and that the fencing is mostly 'Super 6' or 'Hardifence' panels, both of which are no longer available. The parties also agree that the appropriate product to replace the fencing is Colorbond steel.
[42] Refer to s 13 of the ST Act which provides that common property is held by the owners as tenants in common in shares proportional to the unit entitlements of their respective lots.
It is also agreed by the parties, that pursuant to s 91(1)(c) of the ST Act, the strata company must keep in good and serviceable repair, properly maintain and if necessary, renew and replace the common property, including the fittings and fixtures and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause.
Giabeni asserts that the delay by the strata company to attend to the fencing around Lot 12's Exclusive Use Area (which was created by Sch 1 by-law 16) and elsewhere in the strata scheme, is unreasonable. It is the position of Giabeni that each of the following views supports its contention that the strata company's delay in not renewing or replacing the fencing is unreasonable:
(a)the conclusion of Mr Woodhouse that the fencing is in a poor condition, that many of the fence panels are in a dangerous condition and may fail without warning and that the fencing should be replaced 'as soon as possible'.[43]
(b)the conclusion of Mr Rossiter that the boundary fencing at Lot 12 should be repaired 'as soon as possible'; and
(c)the conclusion of Mr Rajaram that the fencing contains asbestos, and that steps must be taken to label, seal/encapsulate the exposed or damaged areas of the fence and decontaminate the surrounding area 'as soon as practicable' and that if the strata complex was his home, as he has young children, he would have had the work completed within one to three months.
[43] HB at pages 181 to 187.
The strata company takes the position that replacement of the fencing is not necessary and that the obligation to replace or renew the fencing, including the fencing for Lot 12's Exclusive Use Area has not arisen, because all of the experts concur that replacement of the fencing is not currently and immediately necessary or essential, rather the fencing can be properly maintained.[44]
[44] ts 137, 19 June 2024.
In the alternative, the strata company says that even if the obligation to replace the fencing has arisen, the course of action undertaken by the strata company, whereby an EGM will be called shortly to approve the 'fencing proposal' to replace the fencing in a staged approach over a period of years is reasonable and not in contravention of s 91 or s 119 of the ST Act. The strata company says that it intends to replace the fencing and this has been known to Giabeni since before Giabeni made its current application to the Tribunal.[45]
[45] Ibid.
Finally, because immediate replacement of the fencing is not necessary, as opined by the experts, and in all likelihood the fencing will be replaced, counsel for the strata company submits that the decision of the strata company ought not be overturned.[46]
[46] Ibid.
On the afternoon of the first day of the final hearing, 17 June 2024, I attended the strata complex with the parties and their respective counsel for an external inspection of the strata complex including the fencing on the common property and around Lot 12's Exclusive Use Area.
The following description of the fencing is provided by counsel for Giabeni:[47]
(a)the fencing is various shades of grey, comprised of corrugated sheets, and approximately six feet high;
(b)the fencing around the Lot 12's Exclusive Use Area appears to be old and in poor condition with many cracks, pieces missing and is leaning over in places;
(c)at the rear of Lot 12, the fencing is leaning and broken in places and is adjacent to an open space of land on the strata lot;
(d)it is possible for a person of less than six feet tall to look into the backyard of Lot 12 through broken sections of the fencing; and
(e)the fencing does not appear to be solid or strong.
[47] Applicant's closing submissions handed up at hearing on 19 June 2024 at page 3.
Counsel for the respondent described the fencing as follows:[48]
(a)the fencing throughout the common property is either grey Hardifence, light grey Colorbond or paperbark brick walls;
(b)the fencing is standing but there are some fence panels leaning, some panels are separated and there is some discolouration of panels at various sections; and
(c)vegetation is growing through and reticulation can be seen through parts of the fencing at Lot 12.

General duty of strata company re common property

[48] ts 47, 18 June 2024.

The starting point is that a strata company is limited in its scope of operations or functions by the provisions of the ST Act and its by-laws.
The functions of a strata company are set out in Div 1 of Pt 8 of the ST Act and includes a general duty to control and manage the common property for the benefit of all owners (s 91(1)(b) of the ST Act).
In relation to common property, s 91(1)(c) of the ST Act expressly obligates the strata company to keep 'in good and serviceable', to 'properly maintain', and 'where necessary' 'renew and replace' the common property. As stated in Dworakowski and The Owners of 63 Temple Street Victoria Park Strata Plan 26070 [2020] WASAT 45 (Dworakowski) at [58] the term 'properly maintain' is hard to make sense of insofar as there would be, implicit therein, a suggestion that there is an improper way in which one could maintain common property and that in contrast, the concept of maintaining something properly is readily understood and such phraseology is commonly used. Like its predecessor, s 35(1)(c) of the ST Act as it was prior to 1 May 2020 (Prior Act), nothing in my view turns on the word 'properly' in the context of the term 'properly maintain' in s 91(1)(c) of the ST Act.
It is useful to restate here the Tribunal's consideration in Dworakowski at [59] to [61]. It sets out the extent of strata company's obligation 'to properly maintain' the common property as follows:
59In Clark and The Owners of Waterfront Mews Strata Plan 14082 [2011] WASAT 110 the Tribunal considered the extent of the obligation 'to properly maintain' the common property as provided for in s 35(1)(c) [of the Prior Act]. In that case, the Tribunal was considering the strata company's obligation in relation to the maintenance of correcting the balance for a swimming pool located on common property. There, the Tribunal concluded at [25] that in applying the maintenance obligation, as explained in Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181, there is no requirement to do anything with the pool chemicals until a reading establishes that the pool is out of balance and some additional chemicals are required. Provided that is done, the maintenance obligation in s 35(1)(c) [of the Prior Act] will, in this respect be discharged. This was explained by Her Honour Justice McLure (as she was then) at [231]-[232]:
The obligation to 'properly maintain' has, in another statutory context, been held to give rise to an absolute obligation of the kind contended for by the injured claimants:  Galashiels Gas Co Ltd v O'Donnell [1949] UKHL 2; [1949] AC 275; Hamilton v National Coal Board [1960] 2 WLR 313. In both cases the expression was contained in legislation imposing specific safety obligations on employers. In Galashiels, the expression 'maintained' was defined in the relevant legislation to mean 'maintained in an efficient state, in efficient working order and in good repair'.  Lord MacDermott in Galashiels at 286 noted that the word 'maintain' when used in relation to the state or condition of things is not always used in the same sense. It may be used to indicate the continuance of a particular state or condition or it may mean acts done or required to be done in the course of maintenance. In the latter context, maintain means service, look after or attend to. The House of Lords construed the term in the former sense with the consequence that any cessation in the efficient working order of plant in question established a breach. The effect was that the employer warranted that the equipment it was obliged to maintain would never be out of working order (see Hamilton (316)).
When regard is had to the multiple purposes in s 35(1)(c) [of the Prior Act], it is clear that the legislature did not intend for a strata company to guarantee a continuous outcome or standard.  The term 'maintain' is used in the second sense identified by Lord MacDermott in Galashiels, being the process that involves acts of maintenance with the object of continuing the statutory standard, which in this case is that the common property be in good and serviceable repair.
60Further, in Stann and The Owners of Beau Vista Strata Plan 12008 [2012] WASAT 227 (Stann) the Tribunal stated at [12] that s 35(1)(c) [of the Prior Act]:
[i]mposes an obligation on the respondent [strata company] to attend to proper maintenance, renewal and replacement of the common property where there is damage or deterioration.  If damage or deterioration occurs and at that stage proper maintenance is not undertaken by the strata company, it can be said that there is breach of the obligation to 'properly maintain' the common property for the purposes of s 35(1)(c) of the ST Act [the Prior Act] by the strata company[.]
61The Tribunal in Stann made it clear at [13] that a strata company is not obliged to undertake a perpetual maintenance programme so that the common property is, at all times, in a particular state or condition. The Tribunal gave the following example in Stann at [13]:
… If, for example, a gate deteriorates to such an extent that it fails to function as a gate, it could be said that it has reached the state where the strata company's obligations to service, repair, replace or renew arises and it is to return the gate to a good functioning and serviceable state. It need not restore it to an as new condition and it is not obliged to undertake maintenance to prevent deterioration. Although preventative maintenance is prudent, it is not obligatory under s 35(1)(c)[.]
(Tribunal's emphasis)

As explained in Dworakowski at [62] if there is evidence of an adequate process adopted by the strata company, the practical objective of which is to keep the common property in good and serviceable repair, properly maintained and where necessary renew or replace the common property, then the strata company has discharged the duty imposed by s 91(1)(c) of the ST Act even if, at any given time, the common property is in a deteriorated state.
Whether the process adopted by the strata company is adequate to meet the procedural objective and complied with in any case is a question of fact - the facts concerning the process adopted, the facts concerning the compliance with that process and the facts concerning the type or level of deterioration of, or damage to the common property.
In considering whether the strata company's process around the fencing issue is adequate, the practical objective of which is to keep the common property in good and serviceable repair, properly maintained and where necessary renew or replace the common property, I note that it is common ground that the fencing panels which have asbestos have been in situ for approximately 40 years with various parts of the fencing damaged by cracks, splits or holes, some fence panels are more damaged than others, and other panels are leaning.
Further, I note the council received on or about 7 September 2022, Mr Woodhouse's letter (undated) in which he opined: [49]
…
[t]he 'Super 6' fencing panels to the strata complex are in a poor condition. Many are in a dangerous condition and may fail without warning. It is recommended that the fencing panels are replaced as soon as possible[.]
[49] HB at page 182.
None of the experts concluded that the fencing panels had deteriorated to such an extent that immediate replacement is required.
Rather Giabeni's expert, Mr Rossiter, was of the view that the fencing panels around Lot 12 should be repaired as soon as possible because moderate deterioration is evident.[50] Mr Rossiter did not conclude that the fencing required immediate replacement.
[50] HB at pages 166 and 168.
Giabeni's other expert, Mr Woodhouse, at the final hearing, recommended that the fencing panels which are dilapidated should be replaced as soon as possible. Mr Woodhouse did not conclude that the fencing required immediate replacement.
Mr Rajaram, for the strata company, opined that the condition of the fencing panels was fair and recommended that the fencing panels be managed by labelling, sealing/encapsulating any exposed or damaged material and to decontaminate the surrounding area. Again, Mr Rajaram did not conclude that the fencing required immediate replacement. In regards to debris located along the boundary fencing of Lot 12, Mr Rajaram attributed a medium risk rating to that debris and recommended that it be removed and the surrounding area decontaminated.

10 Year Reserve Fund Plan

From the material before the Tribunal, the strata company has in place a '10 Year Reserve Fund Plan' dated 30 September 2020 which reports that the condition of the fencing panels is 'average condition' and that an allowance of $3,300 is provided for in the Reserve Fund for the repair of the fences (with an escalated amount of $4,904) in year nine of the plan, that is by September 2029. Further, an amount of $1,600 (with an escalated amount of $1,656) for the removal of asbestos fence (broken) which is described as being in 'very poor condition' in the first year of the plan, that is, by September 2021, with the notation, 'if required'.[51]
[51] HB at pages 825 to 838.
At the AGM held on 2 November 2023 it was resolved that funds not exceeding $30,000 are to be paid from the Reserve Fund for works identified in Year Four of the 10 Year Plan (see above at [79]). Fencing was only identified for works in Year One and Year Nine of the 10 Year Plan.[52]

Fencing proposal of 17 June 2024

[52] HB at pages 827 to 828.

According to Ms Barbouttis, on 26 September 2023, at the mediation of the other application filed with the Tribunal (CC 1061 of 2023), the members of the council and Ms O'Donnell agreed that the council would prepare a plan for the replacement of the fencing panels that are in need of repair and present that plan to all the owners by mid2024.[53] That evidence is not challenged Giabeni.
[53] HB at page 1198.
The minutes of the AGM held on 2 November 2023 reflect that the council was in the process of preparing a 'fencing proposal' which is planned to be a phased approach over two or more years and the details of which were to be provided to owners by June/July 2024. The fencing proposal was provided to the owners by email on 17 June 2024 (see above at [81]). Included in the email is a note that an EGM is intended to be held in the coming weeks to consider and vote on the fencing proposal. Giabeni did not object to, or challenge the terms of the fencing proposal as set out in the email of 17 June 2024.
While the council presented to the owners the fencing proposal per the email of 17 June 2024, and while it may satisfy the requirement of s 91 and s 119 of the ST Act if carried through, the problem is that there is no certainty to the fencing proposal or the process by which the council intends to implement it. This is because the fencing proposal is simply a proposal to be put to an EGM to be voted on by the members of the strata company.
There is of course no guarantee that any motion, to reflect the fencing proposal to be put to an EGM will be carried. It is already the case that a previous motion put to the AGM on 1 March 2023, although not in the same detail as the fencing proposal was defeated.
Further, even though at the AGM held on 1 November 2023 the resolution carried that funds not exceeding $30,000 are to be paid from the Reserve Fund for works identified in Year Four of the 10 Year Plan, such resolution cannot guarantee that the fencing proposal put to an EGM will be carried. Further, and in any event, Year Four of the 10 Year Plan does not identify any works in relation to fencing.[54]
[54] HB at pages 827 to 828.
It is for the above reasons, in my view, that it cannot be concluded at this time that the strata company has in place an adequate process, the practical objective of which is to keep the fencing panels on the common property in good and serviceable repair, properly maintained and where necessary to renew or replace them.
As already explained, and is repeated here, the strata company is under an obligation per s 91(1)(c) of the ST Act to control and manage the common property for the benefit of all the owners, keep in good and serviceable repair, properly maintain and, where necessary, renew and replace the common property.

Exercise of Tribunal's discretion - fencing issue

Counsel for Giabeni urges the Tribunal to make orders in circumstances where the strata company has conceded that the fencing issue has been on the agenda for a number of years and has the funds to have the works completed.[55]
[55] ts 163, 19 June 2024.
Further, it is submitted by counsel for Giabeni that if the Tribunal were to make orders that the fencing be repaired according to the Brownes Fencing quote, the strata company would not be prejudiced because it is already coming around to the idea that this is something within their power, subject to them exercising the procedure and their right to do so. And that is where the uncertainty is, says counsel for Giabeni, and it is therefore an opportunity for the Tribunal to resolve the scheme dispute.
Finally, counsel for Giabeni relies on The Owners of Mandurah Terrace Apartments Strata Plan 17113 and Russell [2009] WASAT 1 (Russell) to seeks orders from the Tribunal. Relevantly the Tribunal stated at [59] to [61]:
In dealing with whether or not a strata company has unreasonably refused to do that which it allegedly should have done, the Tribunal has consistently taken an approach that the management of the strata company is best left to the strata company and that the Tribunal should not too readily impose its own views on what is unreasonable. … At the same time, the legislature has intended that there be a practicable means of breaking deadlocks between the members of a strata company who are co-owners of the common property, live often in close proximity, and who should desire to live in harmony with each other.
The Tribunal has fulfilled that role in circumstances where resolutions proposed to the strata company have failed whether due to the dissent of a single lot owner, or a majority of lot owners by examining the rationale for dissent to ascertain whether there is a sensible basis for dissent.
(Tribunal's emphasis)
In contrast, counsel for the strata company, while conceding the fencing is not in a great state,[56] and that the fencing issue has been on the agenda for a couple of years,[57] submits that as agreed by all three experts that none of the fencing panels require immediate replacement but ought to occur as soon as practicable, that any work in relation to the fencing must be considered in light of the duties that fall upon the strata company to maintain all of the common property (and not just the fencing) for the benefit of all owners.
[56] ts 147, 19 June 2024.
[57] ts 150, 19 June 2024, and HB at page 514.
Further, counsel for the strata company submits that it was agreed in the other proceeding in the Tribunal (CC 1061 of 2023) that the council would circulate a proposal to replace the fencing in the strata complex by June/July 2024. In addition, counsel for the strata company submits that discussions at the AGM on 1 November 2023 recognise that the replacement of fencing would be a staged approach over two or more years and that it was agreed the works would be accommodated for in the budget where $30,000 was allocated for in the 10 Year maintenance plan which includes the fencing.[58]
[58] ts 150, 19 June 2024.
The fencing proposal was in fact presented to the owners by email on 17 June 2024, just before the commencement of the first day of the final hearing of the current application.
The motions regarding fencing put to the AGM on 1 March 2023 were defeated 9:2. Giabeni and the owner of Lot 12 (by proxy to Giabeni) voted in favour of the resolutions. It is useful to restate the motions that were defeated here.[59]
19.FENCING REPLACEMENT 1
Motion that owners, by ordinary resolution, agree to replace all Hardifence fencing with [Colorbond] in a colour to be determined by the owners, and paid for using existing Reserve Funds on hand was tabled.
20.FENCING REPLACEMENT 2
Motion that owners by ordinary resolution agree to replace the Hardifence adjacent to unit 12 with a brick fence and garden bed consistent with other visitor parking and further to use the existing funds for this work not exceeding $7,000 was tabled[.]
[59] HB at page 337.
The motion put forward at the AGM on 2 November 2023 was carried. Only Giabeni voted against it. It is useful to restate the motion that was carried here.[60]
6.3PROPOSED BUDGET FROM 2024
…
It was explained and discussed that fencing at the complex would involve a phased approach over two or more years and that details of the fencing plan prepared by the Council of Owners would be provided to all owners by June/July 2024.
It was flagged that a special levy may be required for all or some of the fencing works once the report from WSP [Australia Pty Ltd] has been received which will detail the sections of fence by priority[.]
[60] HB at page 515.
While Giabeni urges the Tribunal to make orders (see above at [14]) for the strata company to replace the damaged, cracked and failing fencing at Lot 12's Exclusive Use Area immediately and then to attend to replacing the damaged, cracked and failing fencing of the exclusive use areas between lots and then to finally replace other areas of damaged fencing, as already stated and repeated here, none of the experts recommend that Lot 12's Exclusive Use Area should be the priority or that the fencing requires replacement immediately.
Counsel for the strata company concedes that in all likelihood, that the fencing will be replaced as reflected in the fencing proposal.[61] It is clear that the cost of works proposed in the fencing proposal is substantial with stage one proposed to cost $24,630 to replace the rear and dividing fences of Lot 7 through to Lot 12, the side and front fences of Lot 12 and the shared fence with 8 Third Avenue. Consequently, the strata company will need to carefully manage the process to make sure it has funding to cover the works along with other works required for other parts of the common property, which may require attending to before the fencing.
[61] ts 137, 19 June 2024.
According to Ms Gow's email of 17 June 2024, the strata company has $15,471.14 in the administration fund and $36,829.32 in the reserve fund.
In Hopkins and Clayton [2007] WASAT 255 it was held that the management of the strata company is best left to the strata company and that the Tribunal should not too readily impose its own views. However, in Russell it was held that where there is a deadlock between the members of the strata company who are the co-owners of the common property, the ST Act intends that there be a practicable means to break that deadlock.
There is no requirement for an owner to assist another owner, or that an owner acts altruistically or sympathetically at the expense of their own interests.[62] However, in circumstances where a resolution proposed to the strata company has failed, an order of the Tribunal may be the practicable means of breaking the deadlock between members of the strata company.
[62] See Ainsworth v Albrecht [2016] HCA 40; (2016) 261 CLR 167 at [60] to [64] and Hapgood-Strickland at [52].
The orders sought by Giabeni (as set out above at [14]) were drafted without the assistance of counsel. However, counsel for Giabeni in closing submissions made the submission that the strata company's fencing proposal of 17 June 2024 accepts the Brownes Fencing quote which is in line with the orders sought by Giabeni. Further, counsel for Giabeni submits that, as there is no specific by-law which deals with colours of fencing, in order that the colour of the fence is 'in keeping with the rest of the building' the colour of the fence should be as close as possible to the current colour of the fence, which in Colorbond is 'Dune'.
Therefore, in conclusion, in circumstances where a resolution was put to the strata company at the AGM on 1 March 2023 but was rejected by all owners except for two, a subsequent resolution was put to the strata company at the AGM on 1 November 2023 which carried where the minutes record that 'fencing at the complex would involve a phased approach over two or more years and that details of the fencing proposal would be provided to all owners by June/July 2024' and finally where a fencing proposal has been circulated to all owners, albeit just before the commencement of the final hearing of the current application, it is reasonable, in my view, to exercise the Tribunal's statutory discretionary power to make orders under s 200(1) of the ST Act to resolve the core issue before the Tribunal regarding the fencing issue by making an order that the strata company is to be taken to have passed a resolution without dissent for the strata company to proceed with the fencing proposal as set out in Appendix A.
By making such an order, this will ensure the strata company proceeds promptly with the fencing proposal (as set out in the Appendix to these reasons for decision) without any further delay. Importantly, it will create certainty between the members of the strata company of what has been on the agenda for a couple of years and thus reduce any further disputes. In addition, the order of the Tribunal will formalise the fencing proposal.
Finally, returning to the poem, the 'Mending Wall', in my view, the Tribunal's action will break the deadlock between members of the strata company and thereby enable 'mending' of the fencing at the strata complex.

By-laws issue

All lots have an 'Exclusive Use Area' which is part of the common property as provided for in Sch 1 by-law 16. I will return later in these reasons to set out the proper construction of Sch 1 by-law 16.
It is common ground that the strata company issued to Giabeni four 'Notice of contravention of strata scheme by-laws' notices (notices) for four separate alleged breaches of Sch 1 by-law 16. The four alleged contraventions concern:
(a)the installation of CCTV cameras within the courtyard and carport of Lot 12;
(b)the installation of two decorative screens within the carport of Lot 12;
(c)the driveway of Lot 12 being painted a grey colour; and
(d)the pergola/patio within the courtyard of Lot 12 being painted a charcoal/grey colour.
It is accepted by Giabeni that there are three CCTV cameras affixed high on the back wall of Lot 12 and two CCTV cameras are affixed on the wall at the front. Giabeni describes the CCTV cameras as being 'quiet small' and that 'they are not a permanent alteration or improvement… and can be removed and any damage to the wall easily remedied'.[63] Giabeni asserts that the CCTV cameras do not constitute an improvement or alteration for the purposes of Sch 1 by-law 16. I will consider what is an 'improvement' and an 'alteration' shortly in setting out the proper construction Sch 1 by-law 16.
[63] Applicant's closing submission at page 7.
It is also accepted by Giabeni that there are two decorative screens but contests that the screens are an improvement or alteration for the purposes of Sch 1 by-law 16. Counsel for Giabeni states that at the site visit, he observed that one of the decorative screens was glued to the wall and the other screen sat inside a pot plant. Further, according to counsel for Giabeni, the screens could be easily removed and that glue could be removed and any damage easily remedied.
In regards to the painting of the driveway at the front of Lot 12 and of the pergola/patio at the rear of Lot 12, Giabeni accepts they are painted a charcoal/grey colour.
Counsel for the Giabeni stated that at the site visit, he observed other driveways in the strata complex had not been painted in some time and they were cracked in places and large areas were without paint as it had completely worn away. Further, counsel for Giabeni stated that he noted at the site visit that the woodwork (such as beams, posts and gables) were a light green, cream, off white or yellowish in colour and most did not appear to have been freshly painted. In addition, counsel for Giabeni submits that at the site visit he observed some blue coloured fencing. It is the position of Giabeni that the painting of the driveway and the pergola/patio are the upkeep and maintenance of the common property to a reasonable standard as required by Sch 1 bylaw 16.
Finally, by reference to s 119 of the ST Act, counsel for Giabeni submits that all four notices are invalid.
With respect, I do not accept Giabeni's position. The reasons for this are as follows.

Sch 1 by-law 16

It is useful to start by setting out Sch 1 by-law 16. It provides:
Allocation of an Exclusive Use Area
The common areas as marked on the attached sketch as courtyards (CY) and carports (CP) shall be for the exclusive use of the registered proprietors of the respective lots to which they are numbered and as shown for lots 1 to 16 including the cubic space of the courtyard area extending 3 metres below and 5 metres above the upper surface of the ground floor to the underside of the ceiling of the adjoining respective lot building. The registered proprietors of each of the respective lots shall be responsible for the upkeep and maintenance of the area of exclusive use at their cost and that the area of exclusive use are to be kept at a reasonable and acceptable standard and provided no registered proprietor shall alter, or allow to be altered, or carry out any improvement on the common property for which exclusive use has been granted without receiving written approval of the strata company. A registered proprietor shall not seek or apply to the WA Planning Commission, local authority or any other statutory authority for a change of use or occupancy, other than that contained in the grant or heading, without first obtaining prior written approval of the strata company.

Bearing in mind the proper construction of by-law 16 as set out above, I now turn to consider if each of the four alleged breaches, as contended by the strata company, are a breach of Sch 1 by-law 16, after considering if the notices are valid.

Notices

Giabeni challenges the validity of the notices.[71]
[71] Applicant's closing submissions at page 8.
Counsel for Giabeni submits that the notices are not valid because the strata company has not exercised it power properly in relation to s 119 of the ST Act. Further, counsel for Giabeni submits that the Tribunal in exercising its jurisdiction to resolve the scheme dispute ought to make the declarations sought by Giabeni (as set out above at [14]).[72]
[72] ts 162 - 163, 19 June 2024.
I have reviewed each of the four notices and I am satisfied, and I find that they each comply with the requirement of s 47(1) and s 47(2) of the ST Act in that a written notice is addressed to Giabeni, and the notices specify:
(a)that by-law 16 is alleged to have been contravened;
(b)the particular facts relied on by the strata company as evidence of the contravention;
(c)the actions that the applicant must take in order to avoid a continuing or further contravention of by-law 16; and
(d)in accordance with rule 57 of the strata company attached to each of the notices an explanation of the effect of s 47 of the ST Act.
Section 119 of the ST Act requires the strata company, in performing its functions, to have the objective of implementing processes and achieving outcomes that are not, having regard to the use and enjoyment of lots and common property:
(a)unfairly prejudicial to or discriminatory against a person; or
(b)oppressive or unreasonable.
In The Owners of Broome Beach Resort Strata Scheme 32190 and Waydanette Pty Ltd [2022] WASAT 56 (Waydanette) the Tribunal considered the operation of s 119 of the ST Act. Relevantly, the following was stated at [242] to [245] (footnotes omitted):
242The terms 'oppressive' and 'unreasonable' are not defined in the ST Act. Ordinarily the term 'unreasonable' means things that are not based on or in accordance with reason or sound judgment while 'oppressive' encompasses things that are burdensome, unjustly harsh, or tyrannical. I will apply these definitions in considering the application of s 119 of the ST Act …
243Both parties referred me to the High Court's decision in Wayde v New South Wales Rugby League Ltd (Wayde) which concerned whether the Board of the New South Wales Rugby League's decision to exclude a particular team (Wests) from the New South Wales Rugby League was in breach of s 322 of the Companies (New South Wales) Code which in summary, provides that if the affairs of the company are conducted in a manner that is oppressive, or unfairly prejudicial to, or unfairly discriminatory against a member or members, the court may make such order or orders that it thinks fit.
244The majority in Wayde found that the decision of the Board of the New South Wales Rugby League to exclude Wests from the League 'was taken honestly in pursuit of the object of fostering the game of rugby league and serving its best interests: cl 3(b), memorandum of association'.
245In concluding, the majority held:
Given the special expertise and experience of the Board, the bona fide and proper exercise of the power in pursuit of the purpose for which it was conferred and the caution which a court must exercise in determining an application under s. 320 of the Code in order to avoid an unwarranted assumption of the responsibility for management of the company, the appellants faced a difficult task in seeking to prove that the decisions in question were unfairly prejudicial to Wests and therefore not in the overall interests of the members as a whole. It has not been shown that those decisions of the Board were such that no Board acting reasonably could have made them. The effect of those decisions on Wests was harsh indeed. It has not, however, been shown that they were oppressive or unfairly prejudicial or discriminatory or that their effect was such as to warrant the conclusion that the affairs of the League were or are being conducted in a manner that was or is oppressive or unfairly prejudicial. That being so, the appellants have failed to make good their second submission.
246In my view Wayde supports the following two propositions:
a)that the application of provisions such as that in s 119 of the ST Act must be exercised with caution by the Tribunal in order to avoid an unwarranted assumption of the responsibility for managing a strata company; and
b)that a party seeking to rely on provisions such as in s 119 of the ST Act carries the burden of establishing that the decisions under challenge were such that no strata company acting reasonably could have made them.
In considering whether the notices, under challenge by Giabeni, is such that no strata company acting reasonably would have issued the notices, I will apply the ordinary meaning of 'oppressive' and 'unreasonable' as set out above in Waydanette at [242].
Giabeni urges the Tribunal to intervene in the management of the strata company to declare that Giabeni has not breached the by-laws. To accept Giabeni's contention and to intervene to make the declaration sought, I would need to, following Wayde, conclude that no strata company acting reasonably would have issued the notices to Giabeni. I do not accept Giabeni's contention. In coming to this conclusion, I have taken into consideration the following.
First, one of functions or obligations of the strata company under the ST Act is to enforce compliance with the scheme by-laws. It is therefore reasonable for the strata company to issue a notice to a lot owner for the alleged breach of a by-law. Whether or not the strata company has issued a notice to every other owner in the strata scheme for alleged breaches of the by-laws, while not to be condoned, is not unfairly prejudicial to or discriminatory against Giabeni, in the circumstances of this case where there are multiple alleged breaches of the by-laws.
Second, also relevant in my consideration is that Giabeni does not deny having had installed the CCTV cameras and the decorative screens and having painted the driveway and the pergola/patio.
Third, there is nothing in the ST Act which excludes a lot owner, in this case Giabeni, from complying with the requirements of the ST Act concerning the common property. Further, there is nothing in the ST Act which excludes the strata company from its obligations under the ST Act including dealing with alleged contraventions of the bylaws.
In conclusion, in my view, in consideration of all the evidence, I am of the view that this is not a case to intervene in the management of the strata company in relation to the by-law issue. In my view, Giabeni has not established that the notices under challenge, are such that no strata company acting reasonably would have issued them to Giabeni. In other words, in my view, Giabeni's assertion that the notices are not valid because the strata company has not exercised it power properly in relation to s 119 of the ST Act is not made out.
I now turn to consider each of the alleged four breaches in turn to determine if Giabeni is in breach of the scheme by-laws; in particular Sch 1 by-law 16. It is common ground that Giabeni did not seek and in any event was not given approval by the strata company for the CCTV cameras, the decorative screens or the painting of the pergola/patio and driveway.

Alleged breaches

CCTV Cameras

Counsel for Giabeni submits that the CCTV cameras affixed high on the back wall of the unit at Lot 12 and on the wall at the front of the unit are not a permanent alteration or improvement as they can be removed if the property is sold or for any other reason and any damage to the wall easily remedied.[73] Further, and in any event, the position of Giabeni is that the council gave retrospective approval for CCTV cameras on a different lot (Lot 16) upon that owner informing the council that the CCTV cameras are removeable.[74]
[73] Applicant's closing submissions at page 7.
[74] ts 162, 19 June 2024.
The position of the strata company is that no other lot has CCTV cameras, let alone hard-wired CCTV without an infrastructure contract and as prior written approval of the strata company was not obtained, Giabeni is in breach of Sch 1 by-law 16.[75] However, in the alternative, if some of the CCTV cameras are on the external wall of the unit of Lot 12 but are not within the Exclusive Use Area of Lot 12 (which was not contended by Giabeni), counsel for the strata company urges the Tribunal to make an order for their removal because:[76]
… at the end of the day, alterations of a significant nature have been made to the strata company - to the common property, […] without any approval.
[75] ts 145, 19 June 2024.
[76] ts 145, 19 June 2024.
Counsel for the strata company is concerned that the council has no information from Giabeni as to what infrastructure is associated with the hard-wired CCTV cameras and what parts of the common property have been affected. Counsel for the strata company say there is a persistent pattern by Giabeni with alterations to the common property without authority and those alterations are distinguishable from other unapproved alterations by other lot owners. That is because, according to counsel for the strata company, those other unapproved alterations are 'either nominal or technical non-approvals because either the same or similar things have been approved for other owners previously or because there is no real issue with the alteration'.[77]
[77] ts 146, 19 June 2024.
Counsel for the strata company submits the issue with what Giabeni has done, broadly speaking, relates to either to items which are not in keeping with the strata complex or are unknown infrastructural changes to the common property.[78]
[78] ts 146, 19 June 2024.
It is submission of the strata company that it has had to spend time and incur cost in dealing with applications made to the Tribunal by Giabeni, where a plethora of issues have been raised and following what was said by the Tribunal in The Owners of Matilda Units, Strata Scheme 33443 and Metzger [2023] WASAT 114 at [117], it urges the Tribunal to make an order against Giabeni in this case as:
… [s]ome real consequences must flow for the parties and a signal must be sent.[79]
[79] ts 146, 19 June 2024
I find there are CCTV cameras on common property and also on the external wall of the unit of Lot 12 either within the Exclusive Use Area of Lot 12 or both.
In my view, the CCTV cameras are an improvement or alteration to the common property, the external wall of the unit of Lot 12 either within Lot 12's Exclusive Use Area or both. Further, I find those CCTV cameras which were installed or otherwise attached to walls on Lot 12's Exclusive Use Area or on the common property were so installed without the permission of the strata company contrary to by-law 16. The reasons are as follow.
First, the only other lot to have CCTV cameras installed or affixed was Lot 16. The evidence of Ms Barbouttis is that the CCTV cameras were not hard-wired but were affixed to external walls and were solar powered. Further, it is the evidence of Ms Barbouttis that upon details of the CCTV camera, including images showing the visual range that the council gave retrospective approval to the owner of Lot 16 for those cameras. They were removed in about April 2024 by the owner of Lot 16 and therefore the only CCTV cameras in the strata complex are those of Giabeni.
Second, the evidence of Ms Barbouttis is that she feels uncomfortable when in the area of the bin and visitor parking areas which are on the common property as the CCTV cameras monitor these areas. The area monitored by the CCTV cameras was not disputed by Giabeni.
Third, there is no evidence before the Tribunal to suggest the CCTV cameras are required for security or safety concerns.
Fourth, the CCTV cameras are visible from outside Lot 12 and are not in keeping with the rest of the strata complex as no other lot has CCTV cameras.
While counsel for Giabeni submits the CCTV cameras are not permanent and may be removed, they have been in situ since October 2023 when Giabeni made the current application to the Tribunal and were still in situ when a site visit was undertaken in June 2024 and are therefore, in my view, not temporary in nature but rather are more permanent in nature and are an improvement or alteration to the common property or to Lot 12's Exclusive Use Area.
In conclusion, in my view, Giabeni is in contravention of Sch 1 bylaw 16 with respect to the CCTV cameras.

Decorative screens

Counsel for Giabeni submits that one of the decorative screens is of a lightweight material and is glued to the wall and the other decorative screen sits inside a planter box/pot plant. According to Counsel for Giabeni, the glue attaching the decorative screen to the wall could be seen and in some parts was coming away from the wall and could be easily removed and any damage remedied. On the basis the decorative screens are not permanent in nature, counsel for Giabeni submits they are not an improvement or alteration to the CY for the purposes of Sch 1 bylaw 16.[80]
[80] ts 162, 19 June 2024.
The position of the strata company is that no other lot has decorative screens or something of a similar size and colour in their respective carports.
While I accept the decorative screens may be removed and any damage to the wall and planter box can be remedied, I do not accept the decorative screens are not an alteration to the CY and they may also be an improvement to the CY. The reasons for this follow.
First, none of the other lots have such decorative screens.
Second, even accepting Counsel for Giabeni's position to construe the meaning of 'improvement or alteration' to be permanent in nature, one of the decorative screens was glued to the wall (albeit not very well) which, in my view, is indicative that it was intended for the screen to be permanent in nature. Similarly, in relation to the decorative screen in the planter box, the screen was affixed in position.
Third, there is no evidence before the Tribunal that the decorative screens are temporary or are only intended to be in situ for a short period of time. Rather, the decorative screens have been in situ since before February 2024 when the strata company issued the notices. The decorative screens were observed to be still in situ by counsel for both parties at the site view in June 2024.
In conclusion, in my view, Giabeni has contravened Sch 1 bylaw 16 in regards to the two decorative screens.

Painting of the driveway and pergola/patio

I will deal with the painting of the driveway and the pergola/patio together.
Counsel for Giabeni submits that the colour of the driveway and the pergola/patio are a grey colour which compliments the colour of the fencing being a mid-grey colour.[81]
[81] Applicant's closing submissions at page 7, ts 162, 19 June 2024.
It is the position of counsel for the strata company that the colour of the driveway is grey but the colour of the pergola/patio is a charcoal/ grey colour.
In regards to other pergolas/patios at the strata complex, counsel for Giabeni submits that the woodwork, beams, posts and gables are of various colours from light green, cream, off-white or yellowish in colour and appear not to have been freshly painted.
Counsel for Giabeni submits that the painting of the driveway and the pergola/patio is not a breach of Sch 1 by-law 16 but is upkeep and maintenance which is sorely needed.[82] Further, it is position of counsel for Giabeni, that other driveways in the strata complex have not been painted in some time and are cracked in places and large areas of the paint has completely worn away.[83]
[82] ts 162, 19 June 2024.
[83] Ibid.
Counsel for the strata company submits that the painting of the driveway is an improvement or alteration to Lot 12's Exclusive Use Area but also to part of common property as the full length of the driveway has been painted and the painting is not upkeep or maintenance as asserted by Giabeni.
For similar reasons counsel for the strata company submits that the painting of the pergola/patio is an improvement or alteration and not upkeep or maintenance.
In addition, counsel for the strata company rejects Gabeni's contention that it has undertaken upkeep or maintenance of the pergola/patio and the driveway pursuant to Sch 2 by-law 15 or alternatively has added items permitted by that by-law. In any event, the strata company's position is that Sch 2 by-law 15 is not relevant in this case because it only relates to decoration of the inner surface of the boundary of the lot which is not the case here where a portion of the driveway and all of the pergola/patio are within Lot 12's exclusive use are and a portion of the driveway is the common property.
Counsel for Giabeni, in my view, correctly did not press Sch 2 bylaw 15 as that by-law concerns the decoration of and affixing of items to the inner surface of a lot (and not to the common property).
In my view as stated earlier, and repeated here, painting is a category which may fall under either maintenance/upkeep or alteration/improvement. In this case, the whole pergola/patio was painted and the whole of the driveway was painted by Giabeni. This, in my view, is more than maintenance/upkeep but rather is an alteration or improvement to the pergola/patio and driveway. The reasons for this conclusion are as follows.
First, while other driveways in the strata complex may not have been painted in some time, or may have cracks or paint has worn off, there is no evidence before the Tribunal of what the driveway of Lot 12 looked like before Giabeni painted all of it and in particular if it needed upkeep or maintenance. The same applies in respect of the pergola/patio. That is, while pergolas/patios in strata complex may have different colours such as light green, cream, off while, yellow or not freshly painted, there is no evidence before the Tribunal of what the pergola/patio in Lot 12's Exclusive Use Area looked like before Giabeni painted all of it and in particular if it needed upkeep or maintenance.
Second, Giabeni chose to paint the whole of the pergola/patio (grey) and the whole of the driveway (grey). Giabeni did not dispute that the colour of the driveway was different from the reddish-brown colour of the other driveways in the strata complex.[84] The change in colour of the whole driveway indicates, in my view, an alteration or improvement rather than upkeep or maintenance. According to Ms O'Donnell the colour of the pergola/patio was dark green before it was painted a charcoal/grey colour.[85] The colour of pergolas/patios of the other lots are described as light green, cream, off white and yellow,[86] and match the colour of the dark green timber framing of the carports, gutters and downpipes and the cream colour the wall of the units and none are charcoal/grey in colour. Because of that, in my view, the change in colour of the whole pergola/patio to a charcoal/grey colour supports the conclusion that the painting of the whole pergola/patio is an alteration or improvement rather than upkeep or maintenance.
[84] See photographs in HB at pages 1179 to 1184.
[85] HB at page 34.
[86] Applicant's closing submissions at page 8 and see photographs in HB at pages 1173 to 1183.
Finally, the strata company takes issue with the colour of the driveway and pergola/patio (grey) and states the colour is not in keeping with the strata complex's aesthetics and does not match the other lots. In particular, Ms Barbouttis' view is that the different colour negatively affects the external appearance of the lot and is an eyesore.[87] Further, Ms Barbouttis stated that council is of the view that driveways throughout the strata complex should be the same colour and that pergola/patios and patios throughout the strata complex should be a light green or a cream colour.[88]
[87] HB at page 1212.
[88] HB at page 1212.

The strata company's issue with the colour charcoal/grey supports my view, as set out earlier, that painting the whole driveway and pergola/patio grey when compared with the rest of the complex is more likely an alteration or improvement rather than upkeep or maintenance.
In conclusion, in my view, Giabeni is in contravention of Sch 1 bylaw 16 by painting the pergola/patio and the driveway in a charcoal/grey colour.

Exercise of Tribunal's discretion - contravention of Sch 1 by-law 16

Earlier I made findings that Giabeni has contravened Sch 1 bylaw 16 in respect of the CCTV cameras, the two decorative screens, the painting of the pergola/patio in a charcoal/grey colour and the painting of the driveway in a grey colour.
In my view it is reasonable to exercise the Tribunal's statutory discretionary power under s 199(1) of the ST Act to make a declaration that Giabeni has contravened Sch 1 by-law 16 for the following reasons.
First, there is a real issue concerning actions taken by Giabeni. It is not a hypothetical or theoretical issue.
Second, the declarations sought by the strata company, in my view, should produce foreseeable consequences where Giabeni complies with the scheme by-laws by removing the CCTV cameras and the two decorative screens as well as painting the pergola/patio back to its original colour and remove the paint from the driveway and repaint the driveway to its original colour.
Third, the strata company, who seeks the declaratory relief has a real interest in this matter. This is because the strata company must under the ST Act control and manage the common property for the benefit of all the owners in the strata scheme (s 91(1)(b) of the ST Act). For example, the strata company is responsible for that part of the driveway that is on the common property (and not part of Lot 12's Exclusive Use Area) and therefore must maintain it for the benefit of all the owners.
Finally, there is utility or benefit in making the declarations and some real consequences must flow for the parties. In my view, a declaration by the Tribunal that Giabeni has breached Sch 1 by-law 16 signals that Giabeni's conduct is not acceptable and must be rectified promptly.
In conclusion, the circumstances of this case calls for the marking of the Tribunal's disapproval of Giabeni's conduct. I am satisfied that it is reasonable to exercise the Tribunal's discretion to make declarations under s 199(3)(a) that Giabeni has contravened scheme by-law Sch 1 bylaw 16.
Similarly, in my view, it is reasonable to exercise the Tribunal's statutory discretionary power under s 200(1) of the ST Act to make orders to reinstate the common property area for which exclusive use has been granted to Lot 12 and the common property to remove the CCTV cameras, remove the two decorative screens located on common property for which exclusive use has been granted to Lot 12, being the carport; to repaint the pergola/patio back to its original colour; and to remove the paint from the driveway and repaint the driveway to its original colour as well as to make good the common property. The reasons for this are as follows.
First, it is appropriate for a strata company to defend an application made by an owner, alleging the notices issued that Giabeni contravened Sch 1 by-law 16 are not valid, and that the owner seeks a declaration from the Tribunal that it has complied with Sch 1 by-law 16. This is because the strata company has a general duty under the ST Act to maintain the common property for the benefit of all the owners (s 91(1)(b) of the ST Act).
Second, while Giabeni contends that the other lot owners are in contravention of the scheme by-laws, besides making the contention, there is no such application from Giabeni before the Tribunal.
In conclusion, the circumstances of this case calls for the marking of the Tribunal's disapproval of Giabeni's conduct. I am satisfied that it is reasonable to exercise the Tribunal's discretion to make orders under s 200(1) that Giabeni has contravened scheme by-law Sch 1 by-law 16 and is to remove the CCTV cameras, remove the two decorative screens located on common property for which exclusive use has been granted to Lot 12, being the carport; to repaint the pergola/patio back to its original colour; and to remove the paint from the driveway and repaint the driveway to its original colour as well as to make good the common property.
I finally turn to consider the last issue for determination.

Reimbursement issue

Dismissal application by strata company

I start by considering the strata company's position that the claim for reimbursement of $605 is either misconceived or lacking in substance or that the nature of the dispute is nothing more than trivial and should be dismissed under s 47 of the SAT Act.
For reasons similar to those expressed in relation to the strata company's position that the fencing issue should be dismissed (see above at [99] to [105]), in my view, the claim for reimbursement of $605 is not to be dismissed under s 47 of the SAT Act.
I now turn to consider Giabeni's claim to be reimbursed $605 for the report from WML Consulting Pty Ltd.
Giabeni engaged WML Consultants Pty Ltd to inspect and comment on the condition of the 'Super 6' fencing at the strata complex.[89] The inspection took place on 7 July 2022 and the following statement was made by Mr Woodhouse in his letter (undated) of two pages:
The 'Super 6' fencing panels to the strata complex are in a poor condition. Many are in a dangerous condition and may fail without warning. It is recommended that the fencing panels are replaced as soon as possible[.]
[89] HB at page 181.
On 19 March 2023, WML Consultants Pty Ltd issued tax invoice 30181 to Giabeni for $605 in regard to the 'Fencing Report managed by: Stephen Woodhouse'.[90]
[90] HB at page 199.
Giabeni says that the strata company used the first report from WML Consultants Pty Ltd (with reference to the inspection done by Mr Woodhouse on 7 July 2022) as the basis for motions 18, 19 and 20 at the AGM held on 1 March 2023 to deliberate on the fencing issue as no other structural engineer report was before the strata company at that AGM.
Counsel for the strata company accepts that if it was required to undertake works in accordance with its obligations under the ST Act then it may be required to reimburse a lot owner as was the case in Dworakowski. However, counsel for the strata company submits there is no obligation for the strata company to have obtained the report as part of its obligation under s 91(1)(c) of the ST Act in the current case.
The motion put to the AGM of the strata company held on 1 March 2023 to reimburse $605 to Giabeni was defeated 9:2.[91]
[91] HB at page 337.
A copy of the two-page letter (undated) from Mr Woodhouse of WML Consultants Pty Ltd and an email from Ms O'Donnell of 12 February 2022 were attached to the Agenda for the AGM of 1 March 2023.[92]

Exercise of Tribunal's discretion - reimbursement issue

[92] HB at page 217 and 290 to 309.

I do not accept the submission made for Giabeni, that if the Tribunal makes orders in reliance on the report from WML Consulting Pty Ltd that the strata company should be required to reimburse Giabeni.
Further, I do not accept the position of Giabeni, that regardless of the outcome, the strata company should be ordered to pay to Giabeni the $605 for the structural engineer's report to resolve the scheme dispute or proceeding. My reasons for this are as follows.
First, the starting point in considering the $605 invoice is that all costs incurred by the strata company must be associated with a power, duty or function of the strata company: Dworakowski at [58]. In other words, the strata company is limited in its scope of operations by the provision of the ST Act and its by-laws.
The obligation imposed on the strata company under s 91(1)(c) of the ST Act is to keep the common property, in this case the fencing 'in good and serviceable repair, properly maintain and if necessary, renew and replace'. As explained earlier, and I repeat here, none of the experts required the fencing at Lot 12's Exclusive Use Area to be replaced immediately, as asserted by Giabeni, in the amended orders sought (see above at [14]).
Second, unlike in Dworakowski, where the cost incurred by the owner was for repair works actually completed, here the cost of $605 was for a letter (undated), that was not requested by, or approval given by the council, or the strata company and the letter did not state that works had to be carried out immediately or urgently.
Third, even if the strata company put a motion on notice at the AGM of 1 March 2023 with Mr Woodhouse's letter (undated) along with Ms O'Donnell's email of 12 February 2022, that does not, in my view, justify reimbursement of $605 to Giabeni in circumstances when on 16 March 2022, that is shortly after Ms O'Donnell's email of 12 February 2022, the strata manager informed all owners that the council would engage an expert and later on 6 July 2022 when the strata manager informed Giabeni that it was not authorised to obtain an report (see above at [61]).
In conclusion, in my view, it is not reasonable to exercise the Tribunal's statutory discretionary power to require the strata company to pay $605 or any other amount to Giabeni under s 200(1) of the ST Act in relation to invoice 30181 issued by WML Consultants Pty Ltd.

Conclusion and Orders

In summary, in respect of the fencing issue, Giabeni is successful, and orders are to be made under s 200(2) of the ST Act. However, in respect of the by-laws issue, Giabeni is unsuccessful, and a declaration is to be made under s 199(3) of the ST Act and orders made under s 47(5) and/or s 200(2) of the ST Act. Finally, Giabeni is unsuccessful in respect of the reimbursement issue and an order dismissing that part of the current application is to be made.
I will hear from the parties as to the terms of the Orders which should be made to give effect to these reasons (including for example the date when actions to comply with the by-laws are to be done by), and to program a hearing on costs. To facilitate this process, I will make the following orders.

Orders

The Tribunal orders:
1A copy of the Tribunal's reasons for decision (Reasons) is to be provided to the parties.
2By 25 September 2024, the applicant must file with the Tribunal and give a copy to the respondent a minute of proposed orders to give effect to the Reasons, and to make programming orders for a hearing on costs including in relation to the interim application filed on 12 June 2024 (proposed orders).
3By 1 October 2024, the respondent must file with the Tribunal and give a copy to the applicant any alternative minute of proposed orders that the respondent considers are required.
4.The matter is listed for a directions hearing on 3 October 2024 at 10.00 am for the Tribunal to make orders to give effect to the Reasons and to make programming orders for a hearing on costs.

Appendix A

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
30 JANUARY 2025