GIABENI PTY LIMITED and THE OWNERS OF 30 COODE STREET MOUNT LAWLEY STRATA PLAN 11321

The dispute arose between Giabeni Pty Limited, a body corporate for a strata complex, and the owners of lot 30 Coode Street Mount Lawley, Strata Plan 11321. The applicants sought relief from the Tribunal regarding various alterations and improvements made to their property, including fencing, decorative screens, CCTV, a pergola/patio, and a driveway. They argued that these changes were not alterations or improvements but rather repairs or upkeep, and that they did not adversely affect the use and enjoyment of common property or the scheme. The applicants also claimed that the body corporate's decision to remove these structures and demand reimbursement of a report's cost contravened their duties and objectives under the Strata Titles Act 1985 (WA).

The legal issues before the court were whether the changes made by the applicants constituted repairs or alterations, whether these changes adversely affected the use and enjoyment of common property or the scheme, and whether the body corporate's decision to remove the structures and demand reimbursement contravened their duties and objectives. The applicants argued that the changes were necessary repairs and did not affect the scheme, while the body corporate contended that the changes were improvements and required approval under the Strata Titles Act 1985 (WA). The court needed to determine the proper construction of the by-laws and whether the applicants' actions were in keeping with the strata complex.

The court found that the applicants' actions did not constitute repairs or upkeep but rather were alterations or improvements. The changes did not comply with the strata plan or by-laws, and the body corporate had the right to remove them. The court also found that the applicants' actions adversely affected the use and enjoyment of common property and the scheme. The body corporate's decision to remove the structures and demand reimbursement did not contravene their duties or objectives under the Strata Titles Act 1985 (WA). The court exercised its statutory discretion to make declarations and orders to resolve the scheme dispute, including ordering the applicants to remove the structures and pay the cost of the report. The court also made a declaration that the applicants' actions were in breach of the by-laws and not in keeping with the strata complex.