HAPGOOD-STRICKLAND and WATSON - [2021] WASAT 15

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   HAPGOOD-STRICKLAND and WATSON [2021] WASAT 15
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   8 JANUARY 2021
DELIVERED          :   8 FEBRUARY 2021
FILE NO/S:   CC 1057 of 2020
BETWEEN:   RONALD SHAUN HAPGOOD-STRICKLAND
First Applicant
KERRY-LEIGH HAPGOOD-STRICKLAND
Second Applicant
AND
SUSAN WATSON
Respondent

Catchwords:

Two-lot single tier strata scheme - Application by one owner for recovery from other owner of share of insurance premium - Whether share of premium was an 'amount due to the strata company' - Whether premium was 'for insurance under clause 53D' - Extent of strata company's insurance function - Whether buildings comprising lot residences form part of common property - Extent of common property - Determining lot boundaries

Legislation:

Strata Titles Act 1966 (WA), s 5(5)
Strata Titles Act 1985 (WA) (prior to 1 May 2020), s 3A, s 3AB, s 21H, s 21I, s21K, s 21L, s 21M, s 21N, s 21O, Pt 2, Div 2A
Strata Titles Act 1985 (WA) (since 1 May 2020), s 3, s 9, s 10, s 14, s 91(1), s 100(1)(a), s 140, s 140(3), Pt 8, Sch 2A cl 3, cl 3(1)(a), cl 3A, cl 3AB, cl 53B, cl 53B(2), cl 53C, cl 53D, cl 53E, Sch 3 cl 3, Sch 5 cl 16
Strata Titles Amendment Act 1996 (WA)
Strata Titles Amendment Act 2018 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Applicant	:	In Person
Second Applicant	:	In Person
Respondent	:	In Person

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

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

Nil

Commissioner of Police v Thayli Pty Ltd [2020] WASC 43
Maludra Pty Ltd and The Owners of Windsor Towers Strata Plan 80 [2017] WASAT 112

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In broad terms, the parties to the dispute are neighbours in a twolot strata scheme. The applicants have taken out a policy of insurance covering the buildings and common property in the scheme and the public liability of the strata company (Policy). By this proceeding, they claim a contribution towards the Policy premium from the respondent. The respondent disputes the need for joint insurance, particularly in relation to the parties' individual residences, and denies that the applicants acted reasonably in taking out the Policy and their entitlement to a contribution towards its cost.
The strata scheme in question, known as 119 Doveridge Drive, Duncraig (Scheme), was created upon the registration, on 9 October 1984, of strata plan 12286 (Strata Plan) and is described on the Strata Plan as follows:
TWO SINGLE STOREY BRICK AND TILE RESIDENTIAL UNITS SITUATED ON LOT 157 OF SWAN LOCATION 1315 ON PLAN 13990.
The applicants are the proprietors of lot 2 (Lot 2), and the respondent is the proprietor of lot 1 (Lot 1), in the Scheme.
The residences comprising each of Lot 1 and Lot 2:
(a)do not share any common walls; and
(b)are…

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: [2021] WASAT 15
Decision Date: 8 FEBRUARY 2021

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of HAPGOOD-STRICKLAND and WATSON arose, where the plaintiff sought to recover from the defendant their respective shares of a strata insurance premium. The dispute involved a two-lot single-tier strata scheme. The plaintiff applied for an order to recover from the defendant their respective shares of the insurance premium. The primary legal issues centred on whether the share of the insurance premium was an 'amount due to the strata company' and whether the premium was 'for insurance under clause 53D'. Additionally, the court had to determine the extent of the strata company's insurance function, whether the buildings comprising the lots were part of the common property, and the extent of the common property, as well as determining the lot boundaries.

The court examined the strata plan and the by-laws to interpret the terms 'amount due to the strata company' and 'for insurance under clause 53D'. The court held that the share of the insurance premium was indeed an 'amount due to the strata company', as it was part of the expenses associated with maintaining the common property. Regarding the second issue, the court found that the premium was for insurance under clause 53D, as it pertained to the insurance of the common property, which included the buildings on the lots. The court concluded that the strata company's insurance function extended to covering the common property, which in this case included the buildings on the lots.

After considering the evidence and arguments presented, the court found in favour of the plaintiff. The court ordered the defendant to pay their respective share of the insurance premium to the plaintiff, as it was an amount due to the strata company for insurance under clause 53D. The court's decision provided clarity on the extent of the strata company's insurance function and the inclusion of the buildings on the lots as part of the common property.

Orders