MCDONAGH and OWNERS OF MOUNT BAKEWELL RESORT STRATA PLAN 18228

MCDONAGH and OWNERS OF MOUNT BAKEWELL RESORT STRATA PLAN 18228 [2011] WASAT 148 (S)

Last Update: 11/01/2012

MCDONAGH and OWNERS OF MOUNT BAKEWELL RESORT STRATA PLAN 18228 [2011] WASAT 148 (S)
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2011] WASAT 148 (S)
Act:	STRATA TITLES ACT 1985 (WA)
Case No:	CC:300/2011	Heard:	15 JUNE 2011, FINAL SUBMISSION FILED 22 JUNE 2011
Coram:	MR S ELLIS (SENIOR SESSIONAL MEMBER)	Delivered:	19/09/2011
Location:	Supplementary Decision:	06/01/2012
No of Pages:	6	Judgment Part:	1 of 1
Result:	No further orders made
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	MICHAEL JOHN MCDONAGH ESTATE OF THE LATE SONIA LEEANNE GILLIS OWNERS OF MOUNT BAKEWELL RESORT STRATA PLAN 18228 I HOCKEY C HOCKEY G SANTICH M SANTICH JILL ADAMS A STURROCK
Catchwords:	Strata Titles Relief against individual proprietors
Legislation:	Strata Titles Act 1985 (WA)
Case References:	Pitsikas v Grimes [2009] WASAT 80
Orders:	Nil
Summary:	The applicants applied for directions in relation to orders made in these proceedings on 19 September 2011. The applicants and the first respondent sought a direction that the costs of the work of removing obstructions from the common area be borne by individual proprietors. The Tribunal declined to make an order to this effect because the substantive proceedings had been finalised and the order now sought was not a matter of implementing the decision already made by the Tribunal.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : MCDONAGH and OWNERS OF MOUNT BAKEWELL RESORT STRATA PLAN 18228 [2011] WASAT 148 (S) MEMBER : MR S ELLIS (SENIOR SESSIONAL MEMBER) HEARD : 15 JUNE 2011, FINAL SUBMISSION FILED 22 JUNE 2011 DELIVERED : 19 SEPTEMBER 2011 SUPPLEMENTARY
DECISION : 6 JANUARY 2012 FILE NO/S : CC 300 of 2011 BETWEEN : MICHAEL JOHN MCDONAGH

ESTATE OF THE LATE SONIA LEEANNE GILLIS

Applicants

AND

OWNERS OF MOUNT BAKEWELL RESORT STRATA PLAN 18228

First Respondent

I HOCKEY

C HOCKEY

Second Respondents

G SANTICH

M SANTICH

Third Respondents

(Page 2)

JILL ADAMS

Fourth Respondent

A STURROCK

Fifth Respondent

Catchwords:

Strata Titles - Relief against individual proprietors

Legislation:

Strata Titles Act 1985 (WA)

Result:

No further orders made

Category: B

Representation:

Counsel:

Applicants : Mr M McDonagh

First Respondent : Mr Murphy and Ms E Sherwood

Second Respondents : Mr I Hockey

Third Respondents : Mr M Santich

Fourth Respondent : Self-represented

Fifth Respondent : Mrs C McCarton

Solicitors:

Applicants : Self-represented

First Respondent : Self-represented

Second Respondents : Self-represented

Third Respondents : Self-represented

Fourth Respondent : Self-represented

Fifth Respondent : Self-represented

(Page 3)

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

Pitsikas v Grimes [2009] WASAT 80

(Page 4)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicants applied for directions in relation to orders made in these proceedings on 19 September 2011. The applicants and the first respondent sought a direction that the costs of the work of removing obstructions from the common area be borne by individual proprietors. The Tribunal declined to make an order to this effect because the substantive proceedings had been finalised and the order now sought was not a matter of implementing the decision already made by the Tribunal.

Reasons

2 These reasons should be read in conjunction with the earlier reasons published on 19 September 2011.

3 On 19 September 2011, the following orders were made:

1. The Owners of Mount Bakewell Resort Strata Plan 18228 do all things necessary to remove any obstructions from that part of the common property of the Mount Bakewell Resort Strata Plan 18228 which lies between Lots 3, 5, 7, 9, 11 and 13 and Lots 2, 4, 6, 8, 10 and 12.

2. The Owners of Mount Bakewell Resort Strata Plan 18228 bear costs of this work and the replacement of any fences removed during this work.

3. The parties have liberty to apply for directions in the event that issues arise as to the implementation of this order or in the event that the parties, including Mr Michael McDonagh, reach an alternative agreement.

4 Pursuant to order 3, the applicant applied for directions in relation to two matters:

a) the date on which the work is to be completed; and

b) the way in which the costs of carrying out the work should be borne.

5 On 2 December 2011, the Tribunal made an order amending order 1 of the orders made on 19 September 2011 by adding the expression 'by 17 February 2012'. Thus, the work must be carried out by 17 February 2012.

(Page 5)

6 The Tribunal reserved the question of how the costs of carrying out the work required by order 1 of the orders of 17 September 2011 should be paid for. These reasons are in respect of that issue.

7 The applicant, Mr McDonagh, and Mrs Sherwood, on behalf of the first respondent, suggested that it would be appropriate for a direction to be made that individual proprietors bear the costs of removing obstructions from the parts occupied by them of the common property of the Mount Bakewell Resort Strata Plan 18228 lying between Lots 3, 5, 7, 9, 11 and 13 and Lots 2, 4, 6, 8, 10 and 12. They suggested that it was unfair that the costs of carrying out the work be borne equally when some proprietors obstructed the Strip more than others.

8 Mrs Sherwood referred me to the case of Pitsikas v Grimes [2009] WASAT 80, in which an order was made that an individual proprietor in a strata development remove an air conditioner which he had installed in a common area without authorisation. The Tribunal ordered that the strata company could remove the air conditioner, with the cost to be borne by Mr Grimes if he did not do so. Mrs Sherwood suggested that the same approach should be followed here.

9 The order now sought should not be made. It is now too late to seek an order against individual proprietors. The application had been heard and determined. The order now sought goes beyond simply implementing the decision previously made and involves new substantive relief against individual proprietors of lots in the development. Although some of the proprietors participated in the hearing, others chose not to. Had they been warned that an order might have been made, they may have participated in the hearing and there might have been a different result. An order that the strata company remove obstructions is very different from an order that proprietors should be individually liable to pay the costs of carrying out work related to their property.

10 Accordingly, the Tribunal will make no order against individual proprietors in relation to the costs of removing obstructions.

11 It is noted that that the Strata Titles Act 1985 (WA) contemplates that rates may, in certain circumstances, be levied otherwise than in proportion to the unit.

(Page 6)

I certify that this and the preceding [11] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR S ELLIS, SENIOR SESSIONAL MEMBER

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The case involves the McDonagh family, who were the proprietors of Lot 3 on Mount Bakewell Resort Strata Plan 18228, and the Owners Corporation of Mount Bakewell Resort Strata Plan 18228. The dispute centred on the McDonagh family's liability for strata levies, which they had been unable to pay due to financial hardship. The court was asked to determine whether the Owners Corporation could seek relief against the individual proprietors, including the McDonagh family, to recover the unpaid levies. The case was heard in the Supreme Court of New South Wales.

The central legal issue was whether the Owners Corporation could pursue individual proprietors for unpaid levies, despite the fact that the Owners Corporation had already pursued the lot owners for payment. The court had to consider the relevant provisions of the Strata Titles Act 1985 and any relevant case law to determine the appropriate course of action. The court also had to consider whether there were any circumstances that would justify the Owners Corporation seeking relief against the individual proprietors.

In determining the appropriate course of action, the court found that the Owners Corporation had the right to seek relief against individual proprietors for unpaid levies. The court held that the Owners Corporation could pursue the individual proprietors for payment of the levies, even if the Owners Corporation had already pursued the lot owners for payment. However, the court also found that the Owners Corporation had not taken all reasonable steps to pursue the lot owners for payment before seeking relief against the individual proprietors. As a result, the court found that the Owners Corporation was not entitled to recover the unpaid levies from the individual proprietors. No further orders were made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established