Jordan v Van Schoubroeck
[2005] WASCA 120
•1 JULY 2005
JORDAN -v- VAN SCHOUBROECK [2005] WASCA 120
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 120 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:83/2004 | 3 JUNE 2005 | |
| Coram: | WHEELER JA ROBERTS-SMITH JA LE MIERE AJA | 1/07/05 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed The order of the learned Commissioner be set aside Action remitted to District Court for further hearing | ||
| B | |||
| PDF Version |
| Parties: | MARIKO JORDAN PETER GERARD VAN SCHOUBROECK |
Catchwords: | Strata titles Appeal from decision of Commissioner of the District Court dismissing appeal against determination of Strata Titles Referee Whether balconies formed part of the common property Strata Titles Act 1966, s 5(1) Boundaries of each lot to be determined by reference to strata plan |
Legislation: | Interpretation Act 1984 Strata Titles Act 1966 Strata Titles Act 1985 Transfer of Land Act 1893 |
Case References: | Nil Collins v Peter Janus and Stella Janus [2001] WADC 186 Godfrey v Russell (1999) 21 SR(WA) 229 Hamilton v Thompson (1999) 23 SR(WA) 41 Owners Corporation v Dervish [2003] NSWCTTT 768 Stevens M described as the Owners Corporation Strata Plan No 14452 (SB99/197) v Chapman C [1999] NSWSSB 65 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JORDAN -v- VAN SCHOUBROECK [2005] WASCA 120 CORAM : WHEELER JA
- ROBERTS-SMITH JA
LE MIERE AJA
- Appellant
AND
PETER GERARD VAN SCHOUBROECK
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER GREAVES
Citation : JORDAN v VAN SHOUBROECK [2004] WADC 101
File No : APP 20 of 2003
Result : Appeal dismissed
(Page 2)
Catchwords:
Strata titles - Appeal from decision of Commissioner of the District Court dismissing appeal against determination of Strata Titles Referee - Whether balconies formed part of the common property - Strata Titles Act 1966, s 5(1) - Boundaries of each lot to be determined by reference to strata plan
Legislation:
Interpretation Act 1984
Strata Titles Act 1966
Strata Titles Act 1985
Transfer of Land Act 1893
Result:
Appeal allowed
The order of the learned Commissioner be set aside
Action remitted to District Court for further hearing
Category: B
Representation:
Counsel:
Appellant : Mr R Guerrini
Respondent : Mr P A Monaco
Solicitors:
Appellant : Vincent Partners
Respondent : Godfrey Virtue & Co
Case(s) referred to in judgment(s):
Nil
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Case(s) also cited:
Collins v Peter Janus and Stella Janus [2001] WADC 186
Godfrey v Russell (1999) 21 SR(WA) 229
Hamilton v Thompson (1999) 23 SR(WA) 41
Owners Corporation v Dervish [2003] NSWCTTT 768
Stevens M described as the Owners Corporation Strata Plan No 14452 (SB99/197) v Chapman C [1999] NSWSSB 65
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1 WHEELER JA: I have had the advantage of reading in draft the reasons for decision of Le Miere AJA. I agree with those reasons and have nothing to add.
2 ROBERTS-SMITH JA: I have had the benefit of reading in draft the reasons prepared by Le Miere AJA. I agree with those reasons and have nothing to add.
3 LE MIERE AJA: The appellant appeals from the decision of a Commissioner of the District Court whereby his Honour dismissed the appeal of the appellant from the decision of the Strata Titles Referee. The Referee ordered the appellant to remove from the common property comprised in a strata plan all fixtures and fittings installed in or about the balconies adjacent to lots 17 and 33 on the strata plan and some other additions.
Events Leading to Referee's Determination
4 The appellant is the proprietor of lots 17 and 33 on Strata Plan 46 ("the Strata Plan"). The respondent is the proprietor of another lot on the Strata Plan. The strata development is a 10 storey, 79 lot residential building known as "Bella Vista" at 6 Hampton Street, Burswood. The Strata Plan was registered in 1969 pursuant to the Strata Titles Act 1966 ("the old Act"). In 1985, the old Act was repealed and replaced by the Strata Titles Act 1985 ("the new Act").
5 Lot 17 is known as unit 22 and lot 33 is known as unit 42. The units have been modified as follows. At unit 22 the external balcony has been enclosed with an aluminium frame and windows. A hard flooring material has been placed on top of the flooring of the balcony. A plan produced by the respondent shows that part of a wall has been removed. At unit 42 the external balcony has been enclosed with an aluminium frame and windows. A hard flooring material has been placed on top of the flooring of the balcony. A brick wall has been added to the bedroom. The walls of the balcony have been rendered. The alterations have been effected without the approval of the proprietors of the other lots of the Strata Plan or the approval of the strata company.
6 The respondent applied to the Referee for orders under s 83(1) of the new Act requiring the appellant to remove the window addition enclosing the balcony of unit 42 and to reinstate each unit to its original structural state.
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Determination of the Referee
7 The Referee decided that the balconies formed part of the common property and hence that the alterations in or about the balconies were alterations to common property. The Referee made an order that requires the appellant to remove from the common property comprised in the Strata Plan all fixtures and fittings installed in or about the balconies adjacent to lots 17 and 33 and all other additions made to any part of the common property in or about those lots without the prior approval of the strata company.
Appeal to the District Court
8 The appellant then appealed to the District Court against the order of the Referee. The appellant's appeal was on two grounds. The first ground was that the Referee erred in deciding that the balconies for lots 17 and 33 were parts of the common property and that on a proper construction of the Strata Plan the balconies were part of lots 17 and 33 respectively and not part of the common property. The second ground of appeal was that on a proper construction of s 83(1) and s 7(2) of the new Act, the Referee did not have jurisdiction to make orders in respect of structural alterations made to lot 17 by the appellant's predecessor in title and the Referee erred in assuming jurisdiction in that respect.
9 After setting out the order appealed from, the grounds of appeal and the contentions of the parties the learned Commissioner concluded as follows:
"7 In my opinion, the learned Strata Titles Referee was correct to conclude, in this case, that the balconies were not part of the appellant's lots shown on the strata plan. When this conclusion is considered in the scheme of the [new] Act as a whole, it can be seen to be consistent with that scheme, because it allows the strata company to have control of the outside appearance and structure of the building.
8 Having reached this conclusion, the foundation for the second ground of appeal disappears. I accept the submission on behalf of the respondent that the appellant may not rely on the fact that certain alterations were undertaken to lot 17 prior to her becoming the registered proprietor, because no share in common property may be
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- disposed of, except as appurtenant to the lot of the proprietor, pursuant to s 19(1) of the [new] Act."
10 For those reasons the learned Commissioner dismissed the appeal.
Grounds of Appeal to this Court
11 There are two grounds of appeal. The first is that the learned Commissioner erred in upholding the finding of the Referee that the balconies of lots 17 and 33 on the Strata Plan were parts of the common property. The second ground is that the Commissioner erred in holding contrary to ss 3(2), 7 and 17 of the new Act that the balconies of lots 17 and 33 were parts of the common property on the basis that consistently with the scheme of the new Act the strata company would thus have control over the structure of the building and outside appearance of it. Those grounds of appeal essentially give rise to one issue: Are the balconies of lots 17 and 33 part of those lots or part of the common property?
The Old Act
12 The Strata Plan was registered in 1969 pursuant to the old Act.
13 The old Act provided that land may be subdivided into lots by registering a strata plan in the manner provided by the Act. When a strata plan has been so registered the lots may devolve or be transferred or otherwise dealt with in the same manner and form as land held under the provisions of the Transfer of Land Act 1893. Section 3 of the old Act provides that unless the contrary intention appears "lot" means a lot shown as such on a strata plan. Subsection 5(1) deals with a strata plan. Paragraph (c) provides that a strata plan shall include a drawing illustrating the lots and distinguishing them by numbers or other symbols. Paragraph (d) provides that a strata plan shall define the boundaries of each lot in the building by reference to floors, walls and ceilings, without necessarily showing any bearings or dimensions of the lot. Paragraph (e) provides that a strata plan shall show the approximate floor area of each lot. It follows that the boundaries of each lot are determined by the strata plan.
14 A copy of the first page of the registered Strata Plan (Annexure A) and sheets 1, 3 and 5 (Annexure B, C and D) of the Strata Plan are attached to these reasons for judgment. On sheets 3 and 5 of the Strata Plan, the line that marks the boundary between the balcony and the interior of lots 17 and 33, and the other lots, is broken by a vinculum. A
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- vinculum is defined in the New Shorter Oxford English dictionary as a bond or tie or a horizontal line over two or more terms denoting that they are to be treated as a unit in the following operation. The evidence before the Commissioner includes a report from Mr Ian Laird, who describes himself as a strata titles consultant. Mr Laird referred to a vinculum as follows:
"The use of the so called vinculum or 'surveyor's hook' on the floor plans was occasionally used by surveyors under the 1966 legislation to imply that there was some exclusivity of use of the area so connected."
16 If there is any ambiguity then that ambiguity is resolved by considering the floor area of each lot shown on the Strata Plan. Each lot depicted on the Strata Plan has the same dimensions except for the balcony attached to the lot. Each lot with a similar balcony is shown as having the same floor area. Lots with balconies with different dimensions are shown as having a different floor area. For example, all of the units shown on sheet 3, including lot 17, are shown as having a floor area of 839 square metres, except for lot 21 which is shown as having a floor area of 912 square feet. The only relevant difference between that lot and the other lots is that it is a corner lot and has a larger balcony. The irresistible inference is that the balconies form part of each lot. That inference is confirmed by measurements of the units undertaken on behalf of the appellant. That evidence is to the effect that when the floor area of lot 33 is measured, the area of the balcony must be included in the calculation in order to reach an area that is consistent with the area of 839 square feet as shown on the Strata Plan.
17 The respondent submits that the lots shown on the Strata Plan are not shown as including the balconies. The respondent submits that the line between the balcony and the interior of the unit shows that the balcony does not form part of the lot, notwithstanding that the line is broken by a vinculum. The respondent submits that if the balcony was intended to form part of the lot then it would not be distinguished from the rest of the lot in the manner shown on the Strata Plan. In my view, the draftsman has
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- depicted the balcony on the Strata Plan and shown that it is part of the lot by the connecting device of the vinculum. The purpose of depicting the balcony on the Strata Plan is to show that the balcony forms part of each lot.
18 The respondent further submits that any ambiguity as to whether or not the balcony is part of each lot is resolved by reference to subsection 5(5) of the old Act. That subsection provides:
"Unless otherwise provided in the strata plan, the common boundary of a lot with another lot or with common property shall be the centre of the floor, wall or ceiling, as the case may be."
19 The respondent submits that the outside edge of the balcony consists of a wall and a balustrade up to about waist height and thereafter is open. The respondent submits that the effect of subsection 5(5) is that a boundary must consist of a floor, wall or ceiling and hence the outside edge of the balcony cannot be a lot boundary because it consists in part of open air and not a floor, wall or ceiling.
20 It is arguable that subsection 5(5) does no more than define the common boundary of a lot with another lot or the boundary of a lot with common property and has no application to a situation where a lot adjoins neither another lot or common property but open air. Furthermore, some boundaries will be constituted in part by something other than a floor, wall or ceiling. For example, a boundary may in part consist of a window or a floor to ceiling sliding glass door. It is arguable that the western boundaries of lots 17 and 33 are constituted by the balcony wall and a perpendicular line extending from that wall to the floor of the balcony above.
21 In any event, subsection 5(5) of the old Act is subject to the express qualification "unless otherwise provided in the strata plan". The respondent concedes that if the Strata Plan expressly and unequivocally stated that the balcony of each lot forms part of the lot then the lot includes the balcony. In my opinion the Strata Plan shows each lot to include the balcony of that lot.
The New Act
22 The new Act commenced on 30 June 1985 (the appointed day). Transitional and savings provisions are found in Sch 3, which is given effect by s 132.
(Page 9)
23 Subclause 3(1) of Sch 3 provides that a former lot, that is a lot under the old Act, on the appointed day becomes for the purposes of the schedule a derived lot corresponding to that former lot and having as its boundaries the same boundaries as that former lot with one qualification. That qualification is that where the former lot had any boundary that under s 5(5) of the old Act was the centre of a floor, wall or ceiling, the former lot becomes a derived lot having as its boundaries instead of any boundary that was the centre of a floor, wall, or ceiling, the upper surface of that floor, the inner surface of that wall or the under surface of that ceiling, as the case may be.
24 Clause 5 of the schedule provides that a person who, immediately before the appointed day, had an estate or interest in a former lot, has on that day the same estate or interest in the derived lot which corresponds to that former lot. Clause 6 of the schedule provides that subject to the schedule, the provisions of the new Act shall, on and from the appointed day, apply to and in respect of a former strata scheme as if it were a strata scheme under the new Act and a derived lot as if it were a lot under the new Act.
25 The effect of the transitional and savings provisions is to preserve the estates and interests of the proprietors of lots 17 and 33 as they were, and with the boundaries they had, prior to the commencement of the new Act, subject only to the alteration of any boundary that was the centre of a floor, wall or ceiling becoming the upper surface of that floor, the inner surface of that wall or the under surface of that ceiling as the case may be.
26 Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable prior to the repeal: Interpretation Act 1984, s 37(1)(c). The new Act does not show a clear intention to take away the estate or interest of the proprietor of a lot under the old Act, except that where a lot under the old Act had any boundary that was the centre of a floor, wall, or ceiling, that boundary is altered to be the upper surface of that floor, the inner surface of that wall or the under surface of that ceiling as the case may be. Indeed, the transitional provisions of the new Act expressly preserve the estate or interest of a proprietor in a lot under the old Act.
The Balconies are Part of the Lots
27 For the reasons stated, the balconies of lots 17 and 33 on the Strata Plan are parts of those lots and are not parts of the common property. The grounds of the appeal are made out and the appeal must be allowed.
(Page 10)
Disposition of the Appeal
28 An appeal under s 105 of the new Act to the District Court against the order of a Referee is by way of hearing de novo. The District Court considers afresh all the evidence and materials that were before the Referee at the hearing of the application and any additional evidence that may be submitted, in order to decide whether or not an order should be made.
29 The respondent's application to the Strata Titles Referee stated that the grounds in support of the application were as follows:
"1. The proprietor has not received approval for the balcony enclosure by obtaining a resolution without dissent from an annual general meeting in breach [of] Strata Titles Act, s 7.
2. The proprietor has not received approval for structural alterations undertaken by obtaining a resolution without dissent from an annual general meeting in breach [of] Strata Titles Act, s 7."
30 In his application to the Referee the respondent did not rely upon the balconies being common property. To the contrary, the grounds of the application assume that the alterations to or in connection with the balconies were alterations on the appellant's lots, that is the balconies formed part of the appellant's lots. The Referee did not consider the application on that basis. Neither did the learned Commissioner in the District Court. Those matters remain to be considered. Furthermore, ground 2 of the appellant's appeal to the District Court remains to be considered.
31 In the circumstances, the appropriate order is that the appeal be allowed, the order of the learned Commissioner be set aside and the matter be remitted to the District Court for further hearing. The further hearing before a Judge of the District Court will be a hearing de novo at which the parties will be free to adduce additional evidence as they see fit.
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