| 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: 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)
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