JANEBA and THE OWNERS OF BULIMBA GROVE VILLA STRATA PLAN 3266
[2020] WASAT 59
•2 JUNE 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: JANEBA and THE OWNERS OF BULIMBA GROVE VILLA STRATA PLAN 3266 [2020] WASAT 59
MEMBER: MS KY LOH, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 2 JUNE 2020
FILE NO/S: CC 1618 of 2019
BETWEEN: BEDRICH JANEBA
Applicant
AND
THE OWNERS OF BULIMBA GROVE VILLA STRATA PLAN 3266
Respondent
Catchwords:
Strata titles - Dispute or complaint under s 83(1) of Strata Titles Act 1985 (WA) (ST Act) - Whether Tribunal has power to award interest - Whether monetary limit under s 84(1)(a) of ST Act exceeded - Whether Tribunal has power to require the strata company to obtain refund
Legislation:
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 6(1)(b), s 15F(1), s 26, s 26(1)
State Administrative Tribunal Act 2004 (WA), s 60(2), s 73, s 91
Strata Titles Act 1966 (WA)
Strata Titles Act 1985 (WA), s 32(1), s 35(1)(c), s 36(1), s 36(1)(a), s 36(1)(b), s 36(1)(c), s 42(2), s 47(1)(b), s 81(1), s 81(2), s 81(11), s 83(1), s 84(1), s 84(1)(a), s 84(1)(b), s 132, Sch 1 by-law 4, by-law 5, Sch 3 cl 3(1), cl 4, cl 6, Div 1 Pt 4, Div 2 Pt 4
Strata Titles Amendment Act 2018 (WA), Sch 5 cl 30
Strata Titles General Regulations 1996 (WA), reg 29
Result:
Preliminary issue determined
Tribunal has jurisdiction to deal with application, save for application for payment of interest under Order 1 and sum sought under Order 2
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr P Monaco |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | GV Lawyers |
Case(s) referred to in decision(s):
Wong v Reid [2016] WASC 59
Wy Properties Pty Ltd v O3 Capital Pty Ltd [2015] WASC 268 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Sometime in 2019, the applicant, Mr Bedrich Janeba, commenced civil proceedings against the respondent, The Owners of Bulimba Grove Villa Strata Plan 3266 (Strata Company), in the Magistrates Court of Western Australia. On 2 October 2019, those proceedings were stayed for three months while the applicant made application to the Tribunal.
On 21 October 2019, the applicant applied to the Tribunal for the following orders under s 83(1) of the Strata Titles Act 1985 (WA) (ST Act):
1.That the Council of Owners constituted at the AGM held on 23 March 2016 and performing its function till the AGM held on 9 March 2017 was correctly constituted and was competent to exercise all authorities, functions and powers of the council in accordance of [sic] Sch 1, sec 4(1) and sec 47(1)(b) of the Strata Titles Act 1985
The Strata Company to repay $910.00 and interest from 24 April 2017 to the Applicant [('Order 1')]
2.That the Strata Company was in breach of its duty accorded to it by sec 35(1)(c) of the ST Act by its failure to properly maintain and renew and repair wall cracks in Unit 11
The Strata Company to pay damages of $3,240.17 for lost rent and cost of materials [('Order 2')]
3.An Order that the Strata Company is to refund all supply and administration charges as noted on the submetered service invoices and collected from the Applicant from April 2017 [('Order 3')]
4.An Order that the Strata Company obtains a refund of $288.00 from the owner of Unit 4. [('Order 4')]
5.An Order that the Strata Company obtains a refund of $218.00 from the owner of Unit 5. [('Order 5')]
6.An Order that the Strata Company obtains a refund of $259.00 from the owner of Unit 7. [('Order 6')]
7.An Order in accordance with division 3, sec 81(11) that [the applicant is] not required to contribute towards the expenses of the Strata Company in relation to this Application [('Order 7')]
As these proceedings commenced prior to the major amendments to the ST Act coming into operation on 1 May 2020 under the Strata Titles Amendment Act 2018 (WA) (STA Act), the provisions of the ST Act, as they were prior to those amendments, apply to the determination of this application: cl 30 of Sch 5 of the STA Act.
All references to the provisions of the ST Act in these reasons are to those in the ST Act immediately prior to 1 May 2020.
Background
These proceedings relate to the strata scheme known as Bulimba Grove Villa situated at 4 Bulimba Road, Claremont (Strata Scheme).
The Strata Scheme is comprised of a parcel of land on which there are 14 units contained in a building, described on the Bulimba Grove Villa Strata Plan 3266 (Strata Plan) as being a 'double storey brick and tile residential building'. The location plan in the Strata Plan shows there are carports to the east of the building, and stairs and balconies adjacent to the building.
The Strata Scheme was created by the registration of the Strata Plan on 31 July 1975 under the Strata Titles Act 1966 (WA) (1966 Act), with 14 lots and common property. The 1966 Act was repealed and replaced by the ST Act, which came into operation on 30 June 1985. By virtue of s 132 of, and cl 6 of Sch 3 to, the ST Act, the Strata Scheme continued, with modification to it made by the transitional provisions in Sch 3.
The applicant in this matter is the proprietor of Lot 11 on the Strata Plan. The Strata Company, upon the ST Act coming into operation, is deemed to be the strata company constituted under s 32(1) of the ST Act in respect of the Strata Scheme: cl 4 of Sch 3 to the ST Act.
Pursuant to cl 3(1) of Sch 3 to the ST Act, the boundaries of each lot (which had been, at the time the Strata Scheme was created, the centres of floors, walls or ceilings) became the upper surface of floors, the inner surface of walls and the under surface of ceilings of the buildings from the day that the ST Act came into operation.
Preliminary issue
The Tribunal decided to determine the following issue as a preliminary issue entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act):
Does the Tribunal have jurisdiction to deal with this application?
Each party has filed written submissions in respect of the preliminary issue. In addition, the applicant attached documents to his written submissions, to which the Tribunal will refer where relevant to the issue of jurisdiction.
Consideration
Order 1
At the Annual General Meeting (AGM) held on 9 March 2017, the council of the Strata Company effectively challenged the authority of the council allegedly constituted on 15 November 2016 to seek legal advice (and thereby incur legal fees).
Minutes of the council meeting on 15 November 2016 reveal that the council was constituted by the applicant and the proprietor of Unit 10, where it was resolved to seek legal advice about the legality of council members being appointed by invitation and not ratified by an AGM or Extraordinary General Meeting and therefore the legality of the council itself.
Minutes of the AGM on 9 March 2017 indicate that the council resolved to seek repayment of the legal fees of $910 from the applicant.
The applicant provided evidence that he repaid $910 on 24 April 2017.
The applicant contends that the council was properly constituted on 15 November 2016 and had the power to incur the legal fees, such fees being restricted to the prescribed limit under s 47(1)(b) of the ST Act and reg 29 of the Strata Titles General Regulations 1996 (WA) (that is, $65 per lot).
Under s 83(1) of the ST Act, the Tribunal is empowered to make an order for the settlement of a dispute or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by the by-laws or the ST Act in connection with a strata scheme.
Section 83(1) of the ST Act provides for a class of persons upon whose application the Tribunal may make such an order (Wong v Reid [2016] WASC 59 at [25]) and on which the impugned power, authority, duty or function has been conferred or imposed.
The class of persons includes a proprietor and a strata company.
In this case, the relevant dispute or complaint is in respect of the power or authority of the council constituted on 15 November 2016 to seek legal advice and incur the legal expense, and whether the Strata Company had the power or authority to seek repayment from the applicant.
As the applicant is a registered proprietor in respect of the Strata Scheme, and the impugned power, authority, duty or function is that which has been conferred or imposed on the Strata Company, there is no issue that the application has been made by and against those to which s 83(1) of the ST Act apply.
Such dispute or complaint is clearly within the jurisdiction of the Tribunal to determine. The powers and duties of a strata company are set out in Div 1 of Pt 4 of the ST Act. The role of a council of a strata company, by which the functions of a strata company are to be performed, is provided for in Div 2 of Pt 4 of the ST Act. By-laws 4 and 5 of the Schedule 1 By-laws, which, unless amended, are deemed to be the by-laws of a strata company under s 42(2) of the ST Act, set out the requirements for the constitution and election of councils.
Under s 84(1)(a) of the ST Act, the Tribunal may make an order requiring a party to a dispute before it to pay a sum of money to a specified person, although such sum cannot exceed $1,000.
Whilst the amount of $910 sought is within the Tribunal's jurisdictional limit under s 84(1)(a), there is no express power for the Tribunal to award interest under the ST Act.
In Wy Properties Pty Ltd v O3 Capital Pty Ltd [2015] WASC 268 (S) (Wy Properties), his Honour Kenneth Martin J held (at [29]) that pre-judgment interest cannot form part of the pecuniary loss, or loss or damage, actually suffered by an applicant in the sense used by s 6(1)(b) and s 15F(1) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (CTRSA Act).
Significantly, his Honour also held (at [31]) that the text of s 26 of the CTRSA Act, particularly s 26(1) (which relevantly empowers the Tribunal to make an order that 'requires a party to any matter before it to pay money to a person specified in the order'), did not use 'sufficiently clear terminology to confer a power upon [the Tribunal] to render an award of interest on a standalone basis' nor did it 'go as far as to confer a power to issue an unlimited variety of monetary orders, such as might include the award of interest'.
As with the ST Act, there is no express power in the CTRSA Act to award interest, pre-judgment or otherwise.
Given the near-identical terms of the Tribunal's relevant power under s 84(1)(a) of the ST Act to s 26(1) of the CTRSA Act, the decision in Wy Properties supports the Tribunal's conclusion that s 84(1) does not confer power upon the Tribunal to award interest.
His Honour also found (at [32]) that Tribunal's ancillary relief power under s 73 of the SAT Act (which relevantly empowers the Tribunal to make any ancillary order the Tribunal considers appropriate for achieving the purpose for which it may exercise a power to make an order) is not sufficiently wide to support the making of a standalone award of interest.
The power to provide for ancillary relief under the ST Act is expressly provided for under s 81(2) of the ST Act:
An order made may include such ancillary or consequential provisions as the State Administrative Tribunal thinks fit.
Given that a similarly broad power for ancillary relief under s 73 of the SAT Act was not sufficient to support the finding of a power to make a standalone interest award under the CTRSA Act, the Tribunal adopts the rationale in Wy Properties in finding that the terms of s 81(2) of the ST Act do not confer a power upon Tribunal to award interest in this case.
Finally, there is a suggestion that the applicant is also seeking a declaration by the terms of the first part of Order 1. In substance, however, Order 1 is an order that seeks payment of money. The first part of Order 1 seeks in effect a finding by the Tribunal to support the order for payment of money.
Accordingly, an order by the Tribunal for the payment of money (if granted) would address the relief sought by Order 1 in substance without offending s 81(1) of the ST Act.
Order 2
On 23 April 2018, the applicant claims that he advised the Strata Company of cracks on the bathroom and bedroom walls in his unit. On 4 May 2018, a subcontractor started to undertake some repair and painting work, although it was not completed, and the applicant alleges that his requests for completion of the job were declined by the Strata Company on the basis that the wall cracks were not structural and therefore not within the Strata Company's responsibility.
The applicant states that he finished the repairs himself on 26 and 27 June 2018, and incurred the cost of materials of $40.17.
The applicant claims that he was not able to rent out Unit 11 whilst the repair works were unfinished. Following his own repairs, he rented out the unit on 14 August 2018 for $400 per week.
The applicant seeks an order for the Strata Company to pay him for the cost of the materials ($40.17) and lost rental income ($3,200).
The Tribunal is satisfied that it has jurisdiction to consider the relevant dispute or complaint the subject of Order 2, that being an alleged failure of the Strata Company to perform its duty under s 35(1)(c) of the ST Act to keep in good and serviceable repair, properly maintain and where necessary, renew and replace the common property.
An issue for final determination is whether the walls constitute 'common property' within the meaning of that term in the ST Act.
The applicant concedes that the sum sought exceeds the Tribunal's jurisdictional limit under s 84(1)(a) of the ST Act, and submits that the Magistrates Court is the correct jurisdiction to determine his claim.
The Strata Company equally submits that the Tribunal does not have power to order the payment sought by the applicant.
The Tribunal finds that the application for an order for payment of $3,240.17 is beyond the monetary limit set by s 84(1)(a) of the ST Act and thus beyond the jurisdiction of the Tribunal.
The Tribunal notes that it is an open construction of s 84(1)(a) of the ST Act to apply the same monetary limit across the amalgamated sum sought under separate orders in an application, where such orders are made for the benefit of, and against, the same parties (that is, for the benefit of the applicant and against the Strata Company). However, the terms of s 84(1)(a) give pause to such a construction, which power is directed towards 'a party to the dispute before it' (emphasis added). The separate incidents alleged in the application give rise to different disputes under s 83(1) of the ST Act, and the terms of s 84(1)(a) suggest that an order can be made against a party to each dispute for which an order may be made under s 83(1).
Ultimately, it is not necessary to express a concluded view about this construction of the monetary limit under s 84(1)(a) of the ST Act as the sum sought under Order 2, either taken on its own or in amalgam with that under Order 1, exceeds the monetary limit.
Finally, for the reasons set out at [32] and [33] above, the preceding sentence to the order for payment of money sought in Order 2 amounts in substance to an application for a finding to support the order for payment of money. It is not necessary for the Tribunal to exercise its power to grant declaratory relief under s 91 of the SAT Act.
Order 3
The applicant challenges the charges for supply and administrative expenses that have been imposed on behalf of the Strata Company under invoices labelled 'Submetered Service Invoice'.
He claims that the supply charge, in respect of which the strata manager had advised comprises water reading charges, has already been charged by the Strata Company. The documents submitted by the applicant suggest that the water reading charges have been paid out of the administrative fund of the Strata Scheme.
Similarly, he claims that the administrative expenses, which he considers form part of the management fee to the strata manager, have already been paid to the strata manager and should not be passed on to the proprietors. The documents submitted by the applicant suggest that the management fee has been paid out of the administrative fund of the Strata Scheme.
Under s 36(1)(a) of the ST Act, a strata company shall establish a fund for administrative expenses that is sufficient in the opinion of the company for the control and management of the common property, for the payment of any insurance premiums and the discharge of any other obligation of the strata company.
A strata company shall determine the amounts to be raised for the fund and to raise such amounts by levying contributions on proprietors: s 36(1)(b) and (1)(c) of the ST Act.
The Strata Company has not provided any details about the nature of the supply and administrative charges, and whether these charges are already part of, or fall outside, contributions levied for the administrative fund.
On the submissions and documents presented to the Tribunal, the Tribunal is satisfied that a dispute or complaint has arisen in respect of whether charges have been properly raised on behalf of the Strata Company against the applicant in the exercise of the Strata Company's power to establish, and levy contributions for, the administration fund under s 36(1) of the ST Act.
The applicant has not stated the amount for which he claims repayment from the Strata Company under Order 3, although the copies of the 'Submetered Service Invoice' submitted indicate it is $54.59.
As explored at [43] and [44] above, whilst it is an open question as to whether the same monetary limit applies to the amalgamated sum sought under both Orders 1 and 3, it is not necessary to resolve this issue as the sums sought under Orders 1 and 3, either taken on their own or in amalgam ($964.59), fall under the monetary limit.
The Tribunal is satisfied that it has the jurisdiction to make an order for payment of $54.59 from the Strata Company to the applicant under s 83(1) and s 84(1)(a) of the ST Act.
Orders 4, 5 and 6
The applicant disputes that certain fees for repairs and maintenance works undertaken for Units 4, 5 and 7 in 2018 were undertaken in respect of common property, and thus fell outside the Strata Company's duties under s 35(1)(c) of the ST Act.
The orders sought require the Strata Company to obtain a refund from each owner of the units for the amount of the repair or maintenance costs incurred by the Strata Company, which range from $218 to $288.
The Tribunal is satisfied that a dispute or complaint has arisen in respect of whether the Strata Company has properly perform its duty under s 35(1)(c) of the ST Act.
In the applicant's view, whilst the Tribunal could 'technically' deal with these claims as they are below the $1,000 monetary limit under s 84(1)(a) of the ST Act, he submits that these matters should be dealt with by the Magistrates Court as monetary claims for debt or damages.
However, the relevant power of the Tribunal sought to be engaged is that under s 84(1)(b) of the ST Act - that is, to require a party to the dispute before it (that is, the Strata Company) to do, or refrain from doing, some specified act to which the application relates. In that sense, the monetary limit under s 84(1)(a) is not relevant to the issue of jurisdiction.
The Strata Company submits that the applicant is seeking to compel it to prosecute individual lot owners of Lots 4, 5 and 7 for various sums of money, in respect of which the Tribunal does not have jurisdiction.
To the extent that the Tribunal has the power to require the Strata Company to seek to recover monies due (rather than 'obtain a refund'), the Tribunal is satisfied that it has jurisdiction to make such orders under s 84(1)(b) of the ST Act. A variation of the terms of the orders under Orders 4, 5 and 6, which the Tribunal does not consider differs in substance from the orders sought, is necessary, as the Strata Company can only pursue (but is not guaranteed of success in) recovery action against the proprietors of Lots 4, 5 and 7 in separate proceedings.
In light of the applicant's submissions, it will be a matter for the applicant as to whether he amends his application to pursue Orders 4, 5 and 6 in the Magistrates Court.
Order 7
The Strata Company submits that if s 81(11) of the ST Act applies, it will not be necessary for Order 7 to be sought, and this application should be dismissed.
Whilst the Tribunal agrees that it is not strictly necessary to make an order in terms of s 81(11) of the ST Act if the conditions of the provision are satisfied, the question of whether or not Order 7 should be dismissed should be determined as part of the final hearing.
Conclusion
For the reasons given, the Tribunal has determined that it has jurisdiction to deal with this application, save for the application for payment of interest sought under Order 1 and for payment of the sum sought under Order 2.
Orders
The Tribunal will make the following orders:
1.The preliminary question: 'Does the Tribunal have jurisdiction to deal with this application?' is answered in the affirmative, save for the application for payment of interest under Order 1 of the application and for payment of the sum sought under Order 2 of the application.
2.The matter is listed for a directions hearing at 9.30 am on 29 June 2020 at 565 Hay Street, Peth, Western Australia to program the application to a final hearing.
3.The parties are to attend the directions hearing by telephone using a telephone number provided to the Tribunal in writing at least seven business days prior to the directions hearing.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
2 JUNE 2020
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