GSG HOLDINGS PTY LTD and BOWE - [2023] WASAT 68

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   GSG HOLDINGS PTY LTD and BOWE [2023] WASAT 68
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   30 MAY 2023
DELIVERED          :   31 JULY 2023
FILE NO/S:   CC 914 of 2022
BETWEEN:   GSG HOLDINGS PTY LTD
Applicant
AND
COLIN BOWE
First Respondent
ROBIN RANDALL
Second Respondent
ALAN SPALDING
Third Respondent

Catchwords:

Strata titles - Allocation of water usage charges between lot owners where no by-law - Functions of strata company - Levying of contributions by strata company - Unit entitlement - Resolution of scheme dispute - Discretion of Tribunal to make orders

Legislation:

State Administrative Tribunal Act 2004 (WA), s 9
Strata Titles (General) Regulations 2019 (WA)
Strata Titles Act 1985 (WA) (prior to 1 May 2020), s 16, s 36, s 81(10), s 83(1), s 87, s 99
Strata Titles Act 1985 (WA), s 23, s 38, s 91(1)(b), s 100, s 100(1)(a), s 100(1)(b), s 100(1)(c), s 100(1)(d), s 100(4)(a), s 100(6), s 102, s 104(1)(d), s 116(1)(g), s 119(1), s 197(4), s 197, s 197(1)(a)(ii), s 197(1)(a)(vi), s 197(2), s 197(4), s 199, s 199(1), s 200, s 200(1), s 200(2)(m), s 200(7), s 202, s 204(b)(iii), Pt 4, Div 3, Pt 8, Div 1, Pt 13, Sch 1, Sch 2, Sch 5, cl 23

Result:

Application successful

Category: B

Representation:

Counsel:

Applicant	:	Mr P Monaco
First Respondent	:	In Person
Second Respondent	:	In Person
Third Respondent	:	In Person

Solicitors:

Applicant	:	GV Lawyers
First Respondent	:	N/A
Second Respondent	:	N/A
Third Respondent	:	N/A

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

Arasi & Anor and The Owners of Beverley Court [2005] WASAT 197
Raymond John Lynch & Others and The Owners of Broome Vacation Village - Strata Plan 19739
Robinson and Stevens [2009] WASAT 207

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings concern the allocation of water usage charges.
On 15 July 2022, GSG Holdings Pty Ltd in its capacity as trustee of the Samoht Management Trust (the applicant) commenced proceedings in the Tribunal under s 197(4) of the Strata Titles Act 1985 (WA) (ST Act). The applicant seeks the resolution of a dispute concerning the charges by The Owners of Broome Vacation Village Strata Plan 19739 (strata company) for water usage in the strata scheme known as the 'Broome Vacation Village' situated at Cable Beach in Broome.
The applicant is the owner of Lot 192 on Strata Plan 19739 (Strata Plan). The Strata Plan was registered on 31 August 1990, and on that date, the strata company, a body corporate, was established under the ST Act. There are 193 lots in this strata scheme. Some lots are occupied permanently, and others are occupied on a seasonal basis. The applicant owned 53 other lots on the Strata Plan at the commencement of these proceedings.[1] Lot 192 is used and operated as a commercially run caravan park.
[1] Hearing Book (HB) at page…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] WASAT 68
Decision Date: 31 JULY 2023

CaseChat Overview and Summary

GSG Holdings Pty Ltd (the applicant) sought to resolve a dispute with the respondents, who are lot owners within the Broome Vacation Village strata scheme, over the allocation of water usage charges. The strata scheme, which comprises 193 lots, is supplied by the Water Corporation via a single meter. The applicant, which owns Lot 192 and operates a caravan park, has nine separate water submeters. The dispute centred around how the strata company should charge the lot owners for water usage, with the applicant arguing for a charge based on unit entitlements, and the respondents contending that the applicant's substantial water usage warranted a different approach.

The primary legal issues before the Tribunal were whether it had jurisdiction to determine the dispute, whether the strata scheme had a by-law governing the charging of water, and if the strata company could charge lot owners for water other than by unit entitlement. Additionally, the Tribunal had to decide whether it should exercise its discretion to make the order sought by the applicant. The Tribunal's role was to interpret the relevant statutory provisions and determine the appropriate method for charging lot owners for water usage.

In addressing these issues, the Tribunal found that it had jurisdiction under the Strata Titles Act to resolve the dispute. It determined that there was no by-law in place concerning the charging of water consumption. The Tribunal concluded that the strata company could charge lot owners for water supplied by the Water Corporation in a manner other than by unit entitlement, as the absence of a by-law allowed for flexibility in the charging method. However, the Tribunal exercised its discretion to order that the strata company must charge lot owners according to their respective unit entitlements, excluding the applicant, Lot 192, which would continue to be charged based on actual consumption recorded by its submeters. This decision aimed to balance the interests of all lot owners while considering the unique circumstances of the applicant's water usage.

The Tribunal ordered that the strata company must charge lot owners for water supplied by the Water Corporation based on their respective unit entitlements, excluding Lot 192, which would continue to be charged based on actual consumption recorded by its submeters. This decision was made to ensure fairness and compliance with the statutory framework governing strata schemes.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I make the following findings of fact, which are uncontroversial, as set out in the parties' joint agreed facts: [18][18] HB at pages 88-90.1.The application relates to Strata Plan 19739, a strata scheme consisting of 193 lots in a scheme known as Broome Vacation Village situated at 122 Port Drive, Cable Beach.2.The [a]pplicant is an incorporated body and the owner of Lot 192 within the strata scheme. The [a]pplicant is the trustee for Samoht Management Trust.3.The [s]econd, [t]hird and [f]ourth [r]espondents are individuals and owners of lots within the strata scheme and are scheme participants.4.The strata scheme has water supplied by the Water Corporation and there is one meter for the scheme being Account Number 9006942841 for the 193 lots within the strata scheme (the Water Corporation Main Meter).5.There are a number of submeters within the scheme.6.Lot 192 has nine (9) separate water submeters (Lot 192 Submeters).7.Water via the Lot 192 Submeters are used by Lot 192 in the operation of a caravan park and some common property.8.The balance of the water is used by the remaining 192 lots and some common property.9.The strata company charges Lot 192 for water consumed based on the reading of the Lot 192 Submeters.[10].The strata company pays the Water Corporation for water consumed by the strata company as read from the Water Corporation Main Meter and after deducting the water consumed via the Lot 192 Submeters, the balance is invoiced by a special water levy paid for by Lot owners based on unit entitlement, with the EXCLUSION of Lot 192 as they pay for their water by actual consumption recorded by their independent water meters installed solely for that purpose.[11].There is no by-law on the strata scheme concerning the charging of water consumption for the scheme. The crux of the application before the Tribunal, is simply, whether the strata company is required to charge lot owners for water supplied by the Water Corporation to the strata scheme based on the respective unit entitlements of the lots as set out on the Strata Plan or whether the strata company may charge Lot 192 for water usage based on the reading of the Lot 192 Submeters and to charge the other owners based on their respective unit entitlements. It is common ground that the latter method is how the strata company is currently charging lot owners for water usage. The applicant says the strata company must charge the lot owners according to their respective unit entitlements, and in the case of Lot 192, the unit entitlement is 13,268 units out of an aggregate of 100,000 units. The respondents say this is not fair as the applicant uses most of the water supplied by the Water Corporation to the strata scheme and therefore the strata company should continue to charge the applicant based on the reading of the Lot 192 Submeters. I will determine the application by answering the following issues or questions:(a)Does the Tribunal have jurisdiction under the ST Act to determine the dispute between the applicant and the respondents concerning how the strata company charges lot owners for water supplied by the Water Corporation to the strata scheme?(b)Does the strata scheme have a by-law for the charging of water supplied to it by the Water Corporation?(c)May the strata company charge lot owners for the water supplied to the strata scheme by the Water Corporation other than by unit entitlement?(d)Should the Tribunal exercise its discretion to make the order sought by the applicant?