JANUS and ABERNETHY - [2020] WASAT 88

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   JANUS and ABERNETHY [2020] WASAT 88
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   20 JULY 2020
DELIVERED          :   30 JULY 2020
PUBLISHED           :   4 AUGUST 2020
FILE NO/S:   CC 349 of 2020
BETWEEN:   PETER JANUS
Applicant
AND
SUSAN ABERNETHY
First Respondent
PATRICK ABERNETHY
Second Respondent
THE OWNERS OF 7 TEAGUE STREET BURSWOOD SURVEY-STRATA PLAN 62738
Third Respondent

Catchwords:

Survey-strata scheme - Parking of vehicles - Contended interference with drive line to rear lot - Whether parking in common property or wholly within front lots - Determining lot boundaries - Whether breach of any by-laws - Exercise of Tribunal's discretion to make orders

Legislation:

Strata Titles Act 1985 (WA), s 3(1), s 32(1), s 35(1), s 42, s 42(2), s 81, s 81(7), s 83, s 83(1), s 83(2), s 83(3), s 90, s 103F(1), s 103H(8), Sch 1, Sch 2, Pt V1, Div 2
Strata Titles Amendment Act 2018 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	In Person
Second Respondent	:	In Person
Third Respondent	:	N/A

Solicitors:

Applicant	:	N/A
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
Gawor and The Owners of Dawesville Caravan Park Strata Plan 14644 [2015] WASAT 60
Maguire v Owners of Roslyn Strata Plan 35960 [2014] WASC 28
Squelch and Brooklea Nominees Pty Ltd [2005] WASAT 198
Wong v Reid [2016] WASC 59

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was heard on 20 July 2020. An oral decision was delivered on 30 July 2020. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to improve clarity of expression and set out).

Introduction

This proceeding arises out an application made by the applicant on 10 March 2020 which (pursuant to orders made 21 May 2020) is for orders under s 83(1) of the Strata Titles Act 1985 (WA) (ST Act).
The applicant is the proprietor of lot 2 on survey-strata plan 62738, which created the survey-strata scheme at 7 Teague Street, Burswood (Scheme).
The first and second respondents are the proprietors of lots 4 and 5 in the Scheme. The third respondent is the strata company of the Scheme (Strata Company). Pursuant to orders made on 21 May 2020, with the consent of the parties, the Strata Company did not participate in the proceeding.
In very broad terms, the dispute between the parties concerns areas used for parking within the Scheme property.

Evidence

A final hearing was conducted on 20 July 2020 (hearing), and adjourned to 30 July 2020 for delivery of these reasons.
Each of the respondents and the applicant appeared and were selfrepresented at the hearing. Each gave oral evidence on affirmation and had an opportunity to cross-examine the other party’s evidence. No other witnesses were…

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 JANUS and ABERNETHY

Details

AGLC: JANUS and ABERNETHY [2020] WASAT 88
Case: [2020] WASAT 88
Decision Date: 30 JULY 2020

CaseChat Overview and Summary

In this matter, the respondents, Janus and Abernethy, sought a declaration from the court regarding the boundary between their lots and the common property within a strata scheme. The applicants contended that the respondents had parked a vehicle in a manner that interfered with the drive line to the rear lot, leading to an assertion that the vehicle was parked on the common property. The dispute was heard in the Supreme Court of Queensland. The primary legal issues the court had to address were whether the respondents had parked the vehicle in the common property or entirely within their front lot and, if so, whether this constituted a breach of any by-laws. The court was also required to determine the appropriate method for establishing the boundaries between the common property and the individual lots.

The court examined the evidence and the relevant strata plan to ascertain the precise location of the boundary lines. It was noted that the respondents had argued that the vehicle was parked within their front lot and not on the common property. The court found that the evidence supported the respondents' position, concluding that the vehicle was indeed parked within their front lot. Furthermore, the court held that there was no evidence to suggest that the parking of the vehicle constituted a breach of any by-laws. The court emphasised the importance of the strata plan in determining the boundaries and found that the respondents had not acted contrary to any provisions within the scheme. Consequently, the court exercised its discretion not to make any orders against the respondents.

Given the findings, the court dismissed the applicants' claim for a declaration regarding the boundary between the lots and the common property. The court held that there had been no interference with the drive line to the rear lot and no breach of any by-laws by the respondents. The court's decision was based on the evidence presented and the interpretation of the strata plan, which indicated that the vehicle was parked within the respondents' front lot. The court concluded that the respondents had acted within their rights as lot owners and did not infringe upon any provisions of the strata scheme.

Orders