MACKIE and HENDERSON - [2010] WASAT 144

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: MACKIE and HENDERSON [2010] WASAT 144

MEMBER: MR T CAREY (MEMBER)

HEARD: 9 JUNE 2010 FINAL WRITTEN SUBMISSIONS PROVIDED 16 AUGUST 2010

DELIVERED : 6 OCTOBER 2010

FILE NO/S: CC 139 of 2010

BETWEEN: GRAHAM LAURENCE MACKIE
Applicant
AND
GRAEME JOHN HENDERSON
KANDY JANE HENDERSON
Respondents

Catchwords:

Strata titles Bylaws Whether invalid Whether procedural requirements met 'Unanimous resolution' Exercise of discretion Effect of agreement between only two proprietors at time of purported resolution Whether bylaws imposing height restrictions not made in accordance with Strata Titles Act 1985 (WA) because inconsistent with the strata company's power to make bylaws Whether bylaws not made in accordance with the Strata Titles Act 1985 (WA) to the extent that they imparted in proprietor right to approve and object to structural alterations in surveystrata scheme Whether bylaws not 'in the interests of all proprietors in the use and enjoyment of their lots'

Legislation:

State Administrative Tribunal Act 2004 (WA), s 9
Strata Titles Act 1984 (WA), s 3, s 7, s 7A, s 7A(2), s 7A(3)(a), s 7(5), s 31C, s 35(1), s 36A, s 42(1), s 42(2), s 42(4), s 83(1), s 93, s 93(2)(c), s 93(c), s 103G, s 115, Sch 3

Result:

Successful in part

Category: B

Representation:

Counsel:

Applicant: Mr R Kronberger
Respondents : Mr J Young

Solicitors:

Applicant: Atkinson Legal
Respondents : Frichot & Frichot

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

Grant and The Owners of Rosneath Farm Strata Plan 35452 [2006] WASAT 162

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant sought the invalidation and repeal of a series of bylaws notified on a surveystrata scheme in 1999 which included the imposition of height restrictions on any future alterations to buildings on the applicant's lot. He did so on a number of grounds, and relied on a number of arguments to substantiate each ground. The grounds included alleged failures to comply with the requirements of the necessary unanimous resolution for the adoption of the bylaws, inconsistencies said to exist between the bylaws and the provisions of the Strata Titles Act 1985 (WA), and a claim that the bylaws were not in the interests of all the proprietors in the use and enjoyment of their lots given that strict compliance with them would require the demolition of the applicant's residence.
The Tribunal considered each argument advanced but was unable to accept any of the applicant's grounds, save that it found two of the bylaws to be inconsistent with the provisions of the Act governing structural alterations to surveystrata lots. Specifically:
1)Having found that the formal requirements for adoption of the bylaws were not complied with, the Tribunal refused, in the exercise of its discretion, to invalidate them. It did so because the then proprietors reached a concluded agreement for adoption of the bylaws as part of a package for the…

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 MACKIE and HENDERSON

Details

AGLC: MACKIE and HENDERSON [2010] WASAT 144
Case: [2010] WASAT 144
Decision Date: 6 OCTOBER 2010

CaseChat Overview and Summary

The case of Mackie and Henderson involved a dispute between the applicants and the respondent regarding the validity of certain by-laws imposed by the strata company on a survey-strata scheme. The applicants, Mackie and Henderson, challenged the by-laws on the basis that they were inconsistent with the provisions of the Strata Titles Act 1985 (WA) and did not serve the interests of all proprietors in the use and enjoyment of their lots. The court was required to determine whether the by-laws were made in accordance with the Act and whether they were in the interests of all proprietors.

The key legal issues the court had to decide were whether the by-laws imposing height restrictions on structures were inconsistent with the provisions of the Strata Titles Act 1985 (WA) and whether they were made in accordance with the Act. The court also had to consider whether the by-laws were in the interests of all proprietors in the use and enjoyment of their lots. The applicants argued that the by-laws were inconsistent with the Act because they imposed restrictions that were not permitted under the Act and because they were not made in accordance with the procedural requirements of the Act. The respondent argued that the by-laws were consistent with the Act and were in the interests of all proprietors.

The court found that the by-laws imposing height restrictions on structures were not inconsistent with the provisions of the Strata Titles Act 1985 (WA) and were made in accordance with the Act. The court held that the by-laws were within the legitimate scope of matters upon which the strata company was permitted to make by-laws and that they did not contradict the limited grounds of objection to which s 7A of the ST Act refers. The court also found that the by-laws were in the interests of all proprietors in the use and enjoyment of their lots, as they were necessary to ensure that the structures on the lots conformed to plot ratio restrictions or open space requirements for the lot.

The court ordered that the by-laws imposing height restrictions on structures were valid and that the applicants' application for relief be dismissed with costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is submitted that, to the extent that the additional bylaws purport to impose a height restriction on structures on parts of surveystrata Lot 1, they are inconsistent with the ST Act provisions dealing with the erection of, or alteration to or extension of, a structure on a surveystrata scheme found in s 7A of the ST Act. That provision is as follows:Structural erections, alterations and extensions restricted, survey‑strata schemes(1)This section does not apply to a lot in a strata scheme.(2)The proprietor of a lot shall not cause or permit (a)any structure to be erected; or(b)any alteration of a structural kind to, or extension of, a structure to be made, on his lot if on completion of the work the structures on the lot will not conform to plot ratio restrictions or open space requirements for the lot, except (c)with the prior approval of the proprietor of the other lot in the case of a survey‑strata scheme in which there are not more than 2 lots (not including lots designated as common property lots); and(d)in any other case with the prior approval, expressed by resolution without dissent, of the strata company.(3)For the purposes of subsection (2) the plot ratio restrictions or open space requirements for a lot are (a)those provided for by the bylaws of the strata company; or(b)in the absence of any such provision, those that represent the pro rata entitlements of or requirements for the lot calculated on the proportion that the area of the lot bears to the area of the parcel.(4)In this section structure includes any prescribed improvement. A distinction is drawn between the permissible grounds upon which objection to a proposal may be raised in strata schemes, which include that the proposal is in breach of a bylaw, and the grounds available to challenge such a proposal by a lot owner in a surveystrata scheme, which do not. For a strata company of a surveystrata scheme to allow a bylaw imposing height restrictions, Mr Mackie contends, is to contradict the limited grounds of objection to which s 7A of the ST Act refers, namely, that the resulting structures do not conform to plot ratio restrictions or open space requirements for the lot. The distinction between the two types of scheme is said to be emphasised by the operation of s 103G of the ST Act, which empowers the Tribunal to make orders, in relation to a strata scheme, requiring a proprietor who has engaged in unauthorised structural work to remove the resulting structure or alteration. No such provision exists in relation to surveystrata schemes. In my view, Mr Mackie's contention is based upon an incorrect reading of s 7A of the ST Act. Unlike s 7 of the Act, applicable to strata schemes, which deals with all proposals for structural erections, alterations or extensions which have not been approved by every other proprietor, and limits the grounds of objection to the grounds referred to in s 7(5) of the ST Act, s 7A of the Act is concerned only with proposals which would result in a structure which does not conform to plot ratio restrictions or open space requirements for the lot. If it applies, the prior approval of the proprietor of other lots is necessary. If not, there is no requirement under the ST Act that the other proprietors' approval be obtained. This would not mean, however, that there might not be a nonstandard bylaw of the strata company imposing some requirement or limitation upon the proposal, provided that the bylaw falls within the legitimate scope of matters upon which the strata company is permitted to make bylaws. I note that this accords with the views of Senior Member Raymond in Grant and The Owners of Rosneath Farm Strata Plan 35452 [2006] WASAT 162 (Grant) at [96] [98]. In Grant, a number of controls on structural works imposed by bylaws in a management statement applicable to a surveystrata scheme were found not to be inconsistent with s 7A of the ST Act, and not invalid on that basis.