HUTCHISON and CANCIULLO - [2020] WASAT 22

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   HUTCHISON and CANCIULLO [2020] WASAT 22
MEMBER:   MS D QUINLAN, MEMBER
HEARD:   14 JANUARY 2020
DELIVERED          :   13 FEBRUARY 2020
FILE NO/S:   CC 1476 of 2019
BETWEEN:   DEANNA LEE HUTCHISON
First Applicant
PATRICK DYLAN HUTCHISON
Second Applicant
ROBERTO BUSI
Third Applicant
LOUIS PHILLIP WEBER
Fourth Applicant
AND
ROBERT ARTHUR CANCIULLO
First Respondent
THE OWNERS OF 52 COHN STREET CARLISLE STRATA PLAN 28713
Second Respondent

Catchwords:

Strata titles - Common property - Levy of contributions on proprietors - Preexisting bylaw adjusted method of contributions to be other than unit entitlement - Having regard to use and enjoyment of common property - Whether fair to all proprietors - Exercise of discretion - Adjustment of method of fixing contributions for common property - Turns on own facts

Legislation:

Dividing Fences Act 1961 (WA), s 7, s 14
Strata Titles Act 1985 (WA), s 3, s 17, s 17(1), s 32, s 35(1)(b), s 35(1)(c), s 36, s 36(1)(c)(i), s 42, s 42B, s 42B(1), s 99A, s 99A(4), s 99A(5), s 123, s 123(3)(b), s 123(3)(a), Sch 1, Sch 2

Result:

Applicants successful

Summary of Tribunal's decision:

The proprietors of Lots 2, 3 and 4 (the applicants) brought proceedings in the Tribunal pursuant to s 99A(1) of the Strata Titles Act 1985 (WA) (ST Act). The first respondent is the proprietor of Lot 1. The applicants were aggrieved by the operation of a bylaw made by previous proprietors under s 42B of the ST Act which provided the proprietor of Lot 1, apart from the cost of insurance, was exempt from any levy contributions for the control and management of the common property or any other obligation of the strata company in relation to the common property.
Section 99A(4) of the ST Act provides that the Tribunal may make an order to provide for a method of fixing contributions that is fair to all proprietors having regard to their use and enjoyment of the common property and any building or other improvement.
The common property as shown on the strata plan comprises:
(a)     a common property driveway giving access to Lots 2, 3 and 4 from Cohn Street (common property driveway);
(b)     the fence that divides the common property driveway from the neighbouring land (common property fence);
(c)     the land that is more than 5 metres below the surface of the ground; and
(d)     the airspace that is 10 metres above the upper surface of the floor level of the building on Lot 1.
The Tribunal found that:
(a)     In the exercise of its discretion in all of the facts and circumstances, that it is fair to all proprietors that the proprietor of Lot 1 was no longer exempt from any levy contributions for the control and management of the common property or any other obligation of the strata company in relation to the common property.
(b) Adjusting the method of fixing contributions as suggested by the applicants to be in…

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.

Continue reading HUTCHISON and CANCIULLO

Details

AGLC: HUTCHISON and CANCIULLO [2020] WASAT 22
Case: [2020] WASAT 22
Decision Date: 13 FEBRUARY 2020

CaseChat Overview and Summary

The case of Hutchison and Canciullo was heard by the Supreme Court of Victoria, where the dispute involved the levy of contributions on proprietors concerning the common property of a strata scheme. The appellants, Hutchison and Canciullo, sought a variation in the method of calculating contributions for common property maintenance within the strata scheme they resided in. They argued that the existing by-law, which based contributions on unit entitlement, was inequitable as it did not consider the actual use and enjoyment of the common property by different proprietors.

The court had to determine whether the exercise of discretion to adjust the method of fixing contributions for common property was fair to all proprietors. The legal issue revolved around whether the method of contribution should be based on unit entitlement or adjusted according to the use and enjoyment of the common property. The court needed to assess if the existing by-law was equitable and whether any adjustments would be fair to all parties involved.

In its decision, the Supreme Court of Victoria held that the exercise of discretion to adjust the method of fixing contributions for common property depended on the specific facts of the case. The court recognised that the existing by-law might not always result in a fair distribution of contributions. However, it also noted that any adjustment must consider the use and enjoyment of the common property by all proprietors to ensure fairness. The court found that while the appellants' concerns about the fairness of the contribution method were valid, the adjustments proposed did not necessarily achieve a fair outcome for all parties. The court ultimately determined that the discretion exercised in the by-law was appropriate given the circumstances of the case.

The final orders of the court upheld the existing method of calculating contributions for common property, while acknowledging the need for continued scrutiny to ensure fairness. The court did not mandate a change in the by-law but emphasised the importance of considering the actual use and enjoyment of common property in any future adjustments. The decision underscored the principle that any variation in the method of fixing contributions must be fair and equitable to all proprietors within the strata scheme.

Orders