MD & DK GIGGINS CT PTY LTD and THE OWNERS OF OCEANIQUE STRATA PLAN 52385
[2015] WASAT 101
•10 SEPTEMBER 2015
MD & DK GIGGINS CT PTY LTD and THE OWNERS OF OCEANIQUE STRATA PLAN 52385 [2015] WASAT 101
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 101 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:379/2015 | 23 JUNE 2015 | |
| Coram: | MR D AITKEN (MEMBER) | 10/09/15 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | MD & DK GIGGINS CT PTY LTD THE OWNERS OF OCEANIQUE STRATA PLAN 52385 |
Catchwords: | Strata titles Power to make bylaws Requirements in respect of a management statement |
Legislation: | Interpretation Act 1984 (WA), s 74 Strata Titles Act 1973 (NSW), s 58(2) Strata Titles Act 1985 (WA), s 5C, s 32(1), s 42, s 79(2), s 93, Sch 1 Sch 2 Sch 2A Strata Titles General Regulations 1996 (WA), reg 46, Sch 3 |
Case References: | Grant and the Owners of Rosneath Farm – Strata Plan 35452 [2006] WASAT 162 Hamlena Pty Ltd v Sydney Endoscopy Centre Pty Ltd (1990) BC9002034 Mackie v Henderson [2011] WASC 197 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd (1991) 5 BPR 11,432 |
Orders | On the application heard before Member David Aitken, it is on 10 September 2015 ordered that:,1. The application is dismissed. |
Summary | The applicant challenged the validity of a bylaw on two grounds. The first ground was that the bylaw did not fall within the power to make bylaws given by s 42(1) of the Strata Titles Act 1985 (WA). The second ground was that the management statement which created the bylaw was not signed by a mortgagee, as required by s 5C(3) of the Act because the management statement in the prescribed form was accompanied by a separate consent page signed by the mortgagee, which was 'qualified'.,The bylaw provides that a lot in the strata scheme may be used only as a residence, but may include use as a home office if approved by both the local government and the council of the respondent strata company.,The Tribunal decided that the bylaw was within the power given by s 42(1)(c) of the Strata Titles Act 1985 (WA) and that the management statement satisfied the requirements of s 5C(3) of the Act.,The application therefore failed and was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STRATA TITLES ACT 1985 (WA) CITATION : MD & DK GIGGINS CT PTY LTD and THE OWNERS OF OCEANIQUE STRATA PLAN 52385 [2015] WASAT 101 MEMBER : MR D AITKEN (MEMBER) HEARD : 23 JUNE 2015 DELIVERED : 10 SEPTEMBER 2015 FILE NO/S : CC 379 of 2015 BETWEEN : MD & DK GIGGINS CT PTY LTD
- Applicant
AND
THE OWNERS OF OCEANIQUE STRATA PLAN 52385
Respondent
Catchwords:
Strata titles Power to make bylaws Requirements in respect of a management statement
Legislation:
Interpretation Act 1984 (WA), s 74
Strata Titles Act 1973 (NSW), s 58(2)
Strata Titles Act 1985 (WA), s 5C, s 32(1), s 42, s 79(2), s 93, Sch 1 Sch 2 Sch 2A
Strata Titles General Regulations 1996 (WA), reg 46, Sch 3
Result:
Application dismissed
Summary of Tribunal's decision:
The applicant challenged the validity of a bylaw on two grounds. The first ground was that the bylaw did not fall within the power to make bylaws given by s 42(1) of the Strata Titles Act 1985 (WA). The second ground was that the management statement which created the bylaw was not signed by a mortgagee, as required by s 5C(3) of the Act because the management statement in the prescribed form was accompanied by a separate consent page signed by the mortgagee, which was 'qualified'.
The bylaw provides that a lot in the strata scheme may be used only as a residence, but may include use as a home office if approved by both the local government and the council of the respondent strata company.
The Tribunal decided that the bylaw was within the power given by s 42(1)(c) of the Strata Titles Act 1985 (WA) and that the management statement satisfied the requirements of s 5C(3) of the Act.
The application therefore failed and was dismissed.
Category: B
Representation:
Counsel:
Applicant : Mr M Hemery
Respondent : Mr M Atkinson with Mr A Shaw
Solicitors:
Applicant : Hotchkin Hanly
Respondent : Atkinson Legal
Case(s) referred to in decision(s):
Grant and the Owners of Rosneath Farm – Strata Plan 35452 [2006] WASAT 162
Hamlena Pty Ltd v Sydney Endoscopy Centre Pty Ltd (1990) BC9002034
Mackie v Henderson [2011] WASC 197
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28
Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd (1991) 5 BPR 11,432
Introduction
1 Oceanique is a strata scheme (Oceanique scheme) which was created on 3 June 2010 by the registration of Strata Plan 52385 (Oceanique strata plan) under the Strata Titles Act 1985 (WA) (ST Act) in respect of Lot 371 on Deposited Plan 48299 (Oceanique land) situated in Country Club Drive, Dawesville. The Oceanique scheme consists of 66 lots, located within two eight storey buildings and common property.
2 The respondent is the strata company which was created by the registration of the Oceanique strata plan under s 32(1) of the ST Act.
3 At the time of the registration of the Oceanique strata plan, St George Bank Limited (St George Bank) held a registered interest in the Oceanique land as mortgagee under Mortgage K383963.
4 Annexure B of the Oceanique strata plan shows Instrument L335896 as a management statement registered on 3 June 2010. Instrument L335896 consists of a 39 page 'Form 25' (Oceanique form 25) and a final page in the form of a consent by St George Bank (St George Bank consent page).
5 There is a dispute between the parties regarding what comprises the management statement for the Oceanique scheme (Oceanique management statement). The applicant contends that the Oceanique management statement is just the Oceanique form 25. The respondent contends that the Oceanique management statement is all of Instrument L335896, which consists of both the Oceanique form 25 and the St George Bank consent page.
6 The Oceanique form 25 states that the by-laws contained in Sch 1 of the ST Act (standard Sch 1 by-laws) and Sch 2 of the ST Act (standard Sch 2 by-laws) are repealed and replaced by Sch 1 By-laws 1 to 49 and Sch 2 By-laws 1 to 10 set out in the management statement (Oceanique by-laws).
7 By-law 18(1) in Sch 1 of the Oceanique by-laws (By-law 18(1)) provides:
Use of Lots
(1) A lot may be used only as a residence but may include use as a home office if first approved in writing by both the City of Mandurah and the council of the strata company its agents or servants but such approval to be at the absolute discretion of the council of the strata company.
8 The applicant became the registered proprietor of Lot 11 in the Oceanique scheme on 6 February 2013.
The application
9 The applicant has made an application under s 93(1) of the ST Act seeking a declaration under s 93(2) of the ST Act that By-law 18(1) is invalid on one or both of the following grounds:
1) That By-law 18(1) was made without power, because it does not fall within the scope of the power to make by-laws given to a strata company by s 42(1) of the ST Act.
2) That the Oceanique management statement was not made in accordance with the ST Act, because it was not signed by each of the persons specified in s 5C(3) of the ST Act.
10 The respondent disputes the applicant's contentions and says that By-law 18(1) is valid. The respondent also says that even if the Tribunal finds that By-law 18(1) was made without power, or that the Oceanique management statement did not satisfy the requirements of s 5C(3) of the ST Act, the Tribunal should exercise its discretion under s 93(3) of the ST Act not to make an order under s 93(2) of the ST Act declaring By-law 18(1) to be invalid.
The history of the proceeding
11 The proceeding arose out of another proceeding, CC 300 of 2014, in which the respondent contends that the applicant and the registered proprietor of another lot in the Oceanique scheme are in breach of By-law 18(1) by allowing the occupation of their lots for short-stay accommodation.
12 Following the filing of this application, a directions hearing was held and orders were made to ensure that the persons referred to in s 79(2) of the ST Act (the proprietors of all lots, mortgagees of lots who have notified their interest to the respondent, and occupiers who would be affected if the application succeeds) were given the opportunity to file a submission or participate in the proceeding. There was no response from any of those persons. A further directions hearing was held and orders made for the parties to file submissions, and the matter was listed for a final hearing.
13 The parties filed written outlines of their submissions and then made further oral submissions at the final hearing on 23 June 2015.
The issues to be determined
14 The issues to be determined are:
1) Was By-law 18(1) made within the power given by s 42(1) of the ST Act? (s 42(1) issue);
2) Were the requirements of s 5C(3) of the ST Act complied with in respect of the Oceanique management statement? (s 5C(3) issue); and
3) If either or both of the s 42(1) issue and the s 5C(3) issue are determined in the negative, should the Tribunal exercise its discretion under s 93(3) of the ST Act not to make an order under s 93(2) of the ST Act declaring By-law 18(1) to be invalid (in the case of the s 42(1) issue), or declaring all of the Oceanique by-laws invalid (in the case of the s 5C(3) issue)? (s 93(3) issue).
Overview of the relevant provisions of the ST Act
15 Section 42(1) of the ST Act gives a strata company the power to make by-laws for the matters set out in that subsection, provided they are not inconsistent with the ST Act.
16 Section 42(2) of the ST Act provides that the standard Sch 1 by-laws and the standard Sch 2 by-laws are deemed to be the by-laws of the strata company, subject to any amendment, repeal or addition to them in accordance with the provisions of that subsection.
17 Section 5C(1) of the ST Act provides that when a strata plan is lodged for registration, a management statement (management statement) that is in the prescribed form and that complies with s 5C(3) may be lodged for registration with the strata plan.
18 Section 5C(3) of the ST Act provides that a management statement shall be signed by the persons specified in that subsection (specified persons).
19 Section 5C(5) of the ST Act provides that upon registration of a management statement, the by-laws set out in it have effect for the purposes of s 42.
20 Section 93(1) of the ST Act provides that a person entitled to vote at a meeting of a strata company may apply to the Tribunal for an order under s 93. A proprietor of a lot is such a person.
21 Section 93(2) of the ST Act sets out the orders which the Tribunal may make under s 93, which includes the making of a declaration that a by-law is invalid.
22 Section 93(3) of the ST Act provides that when an application has been made under s 93(1), the Tribunal may make an order under s 93 if, relevantly, it is satisfied that a by-law was made without power or was not made in accordance with the ST Act.
Section 42(1) issue: was By-law 18(1) made within the power given by s 42(1) of the ST Act?
23 Section 42(1) of the ST Act provides:
A strata company may make by-laws, not inconsistent with this Act, for -
(a) its corporate affairs; and
(b) any matter specified in Schedule 2A; and
(c) other matters relating to the management, control, use and enjoyment of the lots and any common property.
25 Schedule 2A of the ST Act specifies 14 matters that may be provided for in a management statement and, therefore, for which by-laws may be made within the power given by s 42(1)(b) of the ST Act. The parties agree that the only relevant matter in Sch 2A for the purposes of this proceeding is item 4, which is '[t]he control or preservation of the essence or theme of the development under the scheme'. The parties take issue on whether By-law 18(1) is a by-law for that purpose.
26 The parties agree that the word 'and' in s 42(1)(c) of the ST Act is disjunctive and that By-law 18(1) is not a by-law for the management, control or enjoyment of the lots in the Oceanique scheme. However, they take issue on the question of whether By-law 18(1) is a by-law relating to the use of lots in the Oceanique scheme.
27 There are, therefore, two questions to be decided to determine whether By-law 18(1) was made within the power given by s 42(1) of the ST Act:
1) is By-law 18(1) for the control or preservation of the essence or theme of the development under the Oceanique scheme and therefore within the power under s 42(1)(b) of the ST Act? (first s 42(1) question); and
2) is By-law 18(1) a by-law relating to the use of lots in the Oceanique scheme and therefore within the power under s 42(1)(c) of the ST Act? (second s 42(1) question).
First s 42(1) question: is By-law 18(1) for the control or preservation of the essence or theme of the development under the Oceanique scheme?
28 In its written outline of submissions, the applicant contends that the essence or theme of the development under a strata scheme cannot be determined by reference to the by-laws contained in a management statement. However, during the hearing, counsel for the applicant, quite properly, stated that the applicant did not pursue that contention and accepts that an essence or theme can be inferred from the by-laws if there is 'a pervasive scheme of by-laws that establish the theme'. The applicant says the only by-law which the respondent relies on to establish an essence or theme is By-law 18(1) and it is insufficient to infer a theme or essence from a single by-law.
29 The respondent contends that the essence or theme of a development under a strata scheme may be expressly stated or may be inferred from the by-laws and refers to Grant and the Owners of Rosneath Farm – Strata Plan 35452 [2006] WASAT 162 (Grant) at [63] and [66] as an example of by-laws for the control or preservation of an essence or theme of a strata scheme development. The respondent says that the by-laws of the Oceanique scheme, including By-law 18(1), 'establish the character or pervading idea or setting of the development as a residential apartment scheme' and By-law 18(1) is a by-law which relates to the control or preservation of the essence or theme of the development.
30 The Macquarie Dictionary Online defines 'control' as 'to exercise restraint or direction over; dominate; command; to hold in check; curb' and defines 'preserve' as 'to keep alive or in existence; make lasting; to keep up; maintain'. It defines 'essence' as 'intrinsic nature; important elements or features of a thing' and defines 'theme' as 'a subject of discourse, discussion, meditation or composition; a topic'. Considering all of those definitions together, the Tribunal concludes that for by-laws to control or preserve an essence or theme they need to contain provisions which detail not only the essence or theme of the development, but also how that is to be controlled or preserved. In the Tribunal's view, it does not matter whether that is done in one particular by-law or in more than one by-law; the essential factor is that there must be sufficient detail in the by-law or by-laws to achieve this.
31 In Grant, although the by-laws of that strata scheme are not set out, it is clear from the references to them in [11], [12], [61] and [63] that the by-laws contained quite specific and detailed provisions to control and preserve the theme of the development of Rosneath Farm on permaculture and 'pattern language' principles.
32 The only provision in the Oceanique by-laws which the respondent has referred to in support of its contention that the essence or theme of the Oceanique scheme is 'a residential apartment scheme' is By-law 18(1). By-law 18(1) simply states that a lot may only be used as a residence, although that may include use as a home office if that is approved by both the City of Mandurah and the council of the respondent strata company. In the Tribunal's view, that provision is not sufficient for it to be said that it is for the control or preservation of an essence or theme.
33 Therefore, the Tribunal has decided that By-law 18(1) is not for the control or preservation of an essence or theme and it does not fall within the power given by s 42(1)(b) of the ST Act.
Second s 42(1) question: is By-law 18(1) a by-law relating to the use of lots in the Oceanique scheme?
34 The applicant says that the issue of whether s 42(1)(c) of the ST Act gives the power to make By-law 18(1) is an issue of statutory interpretation, and the applicant refers to one of the principles or approaches to the interpretation of legislation known as 'noscitur a sociis'; that the meaning of a word or phrase is to be derived from its context.
35 The applicant contends that this approach can lead to a delimitation of the scope of a word and refers to a number of cases cited in Statutory Interpretation in Australia by DC Pearce and RS Geddes (LexisNexis Butterworths, 7th ed, 2011) (Pearce and Geddes) at [4.23]. The applicant contends that whilst the word 'use' has a wide possible meaning, its meaning in s 42(1)(c) of the ST Act should be limited by the context in which it appears.
36 The applicant contends that the uses of a lot to which the standard Sch 1 by-laws and the standard Sch 2 by-laws relate are confined to uses which may affect the use and enjoyment by other lot owners of their lots and common property. The applicant refers to standard Sch 1 By-laws 1(2)(b), 1(2)(c) and 1(2)(d) and standard Sch 2 By-laws 6, 7, 8, 10, 11, 12(a), 12(b), 12(c) and 14 in support of that contention.
37 The applicant contends that the word 'use' in s 42(1)(c) of the ST Act should therefore be interpreted to be limited to uses that may affect the use and enjoyment by other lot owners of their lots and common property. The applicant contends that By-law 18(1) does not regulate any activity or conduct in relation to a lot that could have any impact on the other lots or the common property, and therefore it is not within the power to make by-laws given by s 42(1)(c) of the ST Act.
38 During the hearing, counsel for the applicant referred to the following statement made by Young J in the unreported decision of the Supreme Court of New South Wales in Hamlena Pty Ltd v Sydney Endoscopy Centre Pty Ltd (1990) BC9002034(Hamlena) at [11] in support of that contention:
In my view the words 'use or enjoyment of lots' in s 58(2) should be read widely and comprehend something which may affect the lot holders as a whole even though that something may occur within a particular lot.
39 Counsel for the applicant went on to say that By-law 18(1) does not regulate any activity or conduct in relation to a lot that could have any impact on the other lots or the common property.
40 The respondent contends that there is no need to resort to principles of statutory interpretation in respect of s 42(1)(c) of the ST Act and that the word 'use' should be given its ordinary and natural meaning. The respondent notes that the applicant concedes that the word 'use' has a wide possible meaning and the respondent contends that there is no reason to limit the meaning of 'use' in s 42(1)(c) of the ST Act to any particular narrower interpretation.
41 The respondent says that using a lot as a residence, by physically occupying a lot as a residence, is an activity conducted within a lot, which is no different to any of the many other activities within a lot which are regulated by the Oceanique by-laws, and that the use of a lot for a purpose other than as a residence might affect the use and enjoyment of other lot owners of their lots or common property as much as any other use of a lot.
42 In Mackie v Henderson [2011] WASC 197 (Mackie), in relation to the question of whether certain by-laws were made without power, at [22], Edelman J states:
The starting point is that it is trite that by-laws frequently interfere with the property rights of the owner of a lot. They can also interfere with a myriad of personal rights in relation to the lot. The range of possible by-laws can be extremely broad. For instance, in Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd (1991) 5BPR 11,432 the New South Wales Court of Appeal upheld a by-law which prohibited the owner of a lot from engaging in any enterprise on the lot other than the medical practice of pathology. This by-law fell within the power to make by-laws 'for the purposes of the control, management, administration, use, or enjoyment of the lots'.
43 Sydney Diagnostic Services Pty Ltd v Hamlena Pty Ltd (1991) 5 BPR 11,432(Sydney Diagnostic Services) was an unsuccessful appeal from the decision in Hamlena. The by-law challenged in Hamlena provided that a proprietor or occupier of a lot, amongst other things, must not engage in, permit or suffer to permit any enterprise or undertaking whatsoever other than the practice of medicine and particular medically related enterprises, but excluding medical practices conducted by general practitioners. The by-law also restricted certain medical practices, such as pathology, to particular lots. It was common ground in that case that the source of power to make that by-law was s 58(2) of the Strata Titles Act 1973 (NSW) which enabled by-laws to be made 'for the purpose of the control, management, administration, use or enjoyment of the lots and common property the subject of the strata scheme concerned'. That wording is very similar to the wording of s 42(1)(c) of the ST Act. In Sydney Diagnostic Services, the New South Wales Court of Appeal, with emphasis on the word 'use' in s 58(2) of the Strata Titles Act 1973 (NSW), held that the by-law being challenged was within power and that the words in that section bear their prima facie meaning, and that the section should not be construed with a limited meaning being given to the word 'use'.
44 Pearce and Geddes states at [4.22] that the principles or approaches to the interpretation of legislation such as 'noscitur a sociis' are 'no more than aids to understanding a writer's intention and can readily be discarded if there is any suggestion that a different meaning is intended'.
45 In the Tribunal's view, following the reasoning in Sydney Diagnostic Services, which was adopted in Mackie, the word 'use' in s 42(1)(c) of the ST Act should be given its ordinary meaning, which is very broad, and there is no need to resort to the 'noscitur a sociis' rule to understand the meaning of the word.
46 Adopting the natural broad meaning of 'use' in s 42(1)(c) of the ST Act, the Tribunal concludes that By-law 18(1) was made within the power given in that subsection.
Conclusion regarding the s 42(1) issue
47 As a result of the decision regarding the second s 42(1) question, the s 42(1) issue is determined in the affirmative; By-law 18(1) was made within the power given by s 42(1) of the ST Act.
Section 5C(3) issue: were the requirements of s 5C(3) of the ST Act satisfied?
48 Section 5C of the ST Act provides:
Management statement setting out by-laws may be registered
(1) When a strata/survey-strata plan is lodged for registration a management statement -
(a) that is in the prescribed form; and
(b) that complies with subsection (3),
may be lodged for registration with it.
(2) A management statement is a document setting out -
(a) by-laws of the strata company that are to have effect under sections 42, 42A and 42B; and
(b) amendments and repeals referred to in section 42(2),
and may include by-laws in relation to any matter specified in Schedule 2A.
(3) A management statement shall be signed by -
(a) the person who is registered as proprietor of the fee simple of the parcel; and
(b) each person who has a registered interest in, or is a caveator in respect of, the parcel.
[(4) deleted]
(5) Upon registration of a management statement, the by-laws set out in the statement, and any amendments and repeals, have effect for the purposes of section 42.
(6) By-laws set out in a management statement may be amended in accordance with section 42 or as otherwise provided by this Act.
[Section 5C inserted by No. 58 of 1995 s. 10; amended by No. 61 of 1996 s. 10.]
49 Pursuant to reg 46 of the Strata Titles General Regulations 1996 (WA) (ST Regulations) the prescribed form for the purposes of s 5C(1) of the ST Act is form 25 in Sch 3 of the ST Regulations (prescribed form 25 - see Annexure A).
50 As has already been stated, Instrument L335896 consists of both the Oceanique form 25 and the St George Bank consent page.
51 The Oceanique form 25 is in the format of the prescribed form 25 up to the point where it is signed by the registered proprietor of the Oceanique land as the applicant under that form, which is the end of it.
52 The St George Bank consent page states:
We refer to the Form 25, Strata Titles Act 1985 Section 5[C](1) Strata Plan 52385 Management Statement.
St George Bank Limited ('the Bank') as mortgagee under mortgage K383963 hereby consents to the registration of the Management Statement in respect of Survey [sic] Strata Plan 52385. The Bank's consent is given on the basis that:
• the Bank does not verify or approve the contents of the legal effect of the Management Statement; and
• the Bank has no liability to the Borrower or any other party in respect of the Management Statement; and
• the Bank does not verify to the Borrower or any party that the Management Statement as registered is consistent with the Borrower's obligations as seller under any contracts of sale it has entered into with buyers of lots on Strata Plan 52385[.]
SIGNED on behalf of
WESTPAC BANKING CORPORATION
53 Pursuant to an order of the Federal Court of Australia on 23 February 2010 and a certificate of transfer issued by the Australian Prudential Regulation Authority on 18 February 2010, the business of St George Bank was transferred to Westpac Banking Corporation (Westpac) and St George Bank was deregistered with effect on 1 March 2010. The Tribunal is therefore satisfied that the signing of the St George Bank consent page by Westpac constituted the signing of that document by St George Bank.
54 The applicant contends that the requirements of s 5C(3) of the ST Act have not been complied with for the following reasons:
• Section 5C(3) of the ST Act states that a management statement shall be signed by the specified persons.
• On its proper construction, s 5C(3) of the ST Act requires strict compliance with that requirement 'on pain of invalidity'.
• Each of the specified persons must physically sign the management statement without any qualification.
• In this case, St George Bank, which held a registered interest in the Oceanique land and was therefore one of the specified persons, signed a consent which was a separate document to the management statement and that did not constitute the signing of the management statement.
• Even if the Tribunal decides that the signing of the St George Bank consent page did constitute the signing of the Oceanique management statement, the consent was qualified in such a way that it did not signify the unconditional adoption of the management statement.
55 It is not in contention that the registered proprietor of the Oceanique land signed the Oceanique form 25 and that the registered proprietor and St George Bank were the only specified persons under s 5C(3) of the ST Act.
56 The s 5C(3) issue is therefore whether the St George Bank consent page satisfies the requirements of s 5C(3) of the ST Act.
57 The applicant says that it is an issue of statutory interpretation whether the requirement in s 5C(3) of the ST Act for the management statement to be signed by the specified persons is obligatory or discretionary and refers to chapter 11 of Pearce and Geddes and a number of cases cited in Pearce and Geddes regarding that issue.
58 The applicant contends that on the proper construction of s 5C(3) of the ST Act, the requirement regarding the signing of a management statement by the specified persons must be complied with strictly 'on pain of invalidity'.
59 The applicant says that the reason for the requirement that the specified persons must sign a management statement is to 'signify' that such persons 'adopt' the by-laws set out in it that will 'bind their interest' upon registration of the management statement. The applicant says that this requirement is intended to 'enforce the integrity of the system of title by registration', and nothing less than strict compliance should be considered sufficient to achieve Parliament's intended purpose.
60 The applicant also says that because the signing of a management statement by all specified persons is within the control of a private individual (the registered proprietor of the parcel of land) rather than a public authority, the decisions cited in Pearce and Geddes at [11.22] indicate that strict compliance on pain of invalidity is required.
61 The applicant contends that St George Bank did not sign the Oceanique management statement in the required sense because the consent page it signed is a separate document and it did not physically sign the management statement itself.
62 The applicant further contends that if the Tribunal concludes that the signing of the consent page satisfied the signing requirement, the consent was qualified in such a way that it did not signify the unconditional adoption of the management statement by St George Bank, which is contrary to Parliament's purpose in mandating the signing of management statements by specified persons.
63 The respondent contends that the consent page is part of the Oceanique management statement because it appears at the end of and is part of Instrument L335896, which is in accordance with the prescribed form 25.
64 The respondent also contends that the signature of Westpac on behalf of St George Bank on the St George Bank consent page sufficiently meets the requirements and purpose of s 5C(3) of the ST Act and the prescribed form 25.
65 The respondent further contends that even if that is not the case then 'substantial compliance' with those requirements is sufficient, and that has occurred. The respondent refers to s 74 of the Interpretation Act 1984 (WA) and Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 (Project Blue Sky) at [93] and [97] as support for that contention.
66 Section 74 of the Interpretation Act 1984 (WA) (Interpretation Act) provides:
Prescribed forms, certain deviations do not invalidate
Where a form is prescribed or specified under a written law, deviations therefrom not materially affecting the substance nor likely to mislead shall not invalidate the form used.
67 The High Court in Project Blue Sky stated, relevantly, at [93]:
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the 'elusive distinction between directory and mandatory requirements' … A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid … In determining the question of purpose, regard must be had to 'the language of the relevant provision and the scope and object of the whole statute' …
- and then at [97]:
Courts have always accepted that it is unlikely that it was a purpose of the legislation that an act done in breach of a statutory provision should be invalid if public inconvenience would be a result of the invalidity of the act[.]
69 In the Tribunal's view, the purpose of the requirement in s 5C(3)(b) of the ST Act that a management statement is to be signed by the specified persons is to give those persons the opportunity to consider the proposed by-laws set out in the management statement, because the interests in the land which those persons hold or claim might be affected by those by-laws. If the specified persons have any concerns about the proposed by-laws then they can refuse to sign the management statement until their concerns are resolved.
70 The Tribunal does not accept the applicant's contention that the purpose of s 5C(3) of the ST Act is to signify that the specified persons adopt the by-laws set out in a management statement.
71 In the Tribunal's view, it is significant that s 5C(5) of the ST Act provides that upon registration of a management statement, the by-laws in it have effect. This gives a strong indication that Parliament did not intend that failure to satisfy the requirements of s 5C(3)(b) of the ST Act would result in the invalidity of those by-laws. Therefore the Tribunal does not accept the applicant's contention that strict compliance with s 5C(3) of the ST Act is necessary 'on pain of invalidity'.
72 In the Tribunal's view, there would clearly be 'public inconvenience' if a failure to comply with s 5C(3)(b) of the ST Act was to invalidate a management statement which has been registered. That would result in confusion and uncertainty, because persons would have purchased lots on the understanding that the by-laws set out in the management statement were the by-laws for the strata scheme, and decisions may have been made and actions may have been taken by proprietors and the strata company on that understanding. Therefore, adopting the approach referred to in Project Blue Sky at [93] and [97], the Tribunal has decided that it was not the purpose of s 5C(3)(b) of the ST Act that a management statement would be invalid if that subsection was not complied with.
73 There are two aspects to the applicant's contention that the requirements of s 5C(3) of the ST Act have not been satisfied. Firstly, the applicant contends that it is not permissible for there to be a 'separate document' to the prescribed form 25 and therefore the St George consent page is not part of the Oceanique management statement and St George Bank has not signed that management statement. Secondly, the applicant contends that the consent of St George Bank was qualified in such a way that it did not signify the unconditional adoption of the Oceanique management statement.
74 The Tribunal does not accept the applicant's contention that the St George Bank consent was a separate document and therefore the signing of it did not constitute the signing of the Oceanique management statement by St George Bank.
75 The St George Bank consent page clearly indicates that it is in respect of the Oceanique form 25 and the registration of the Oceanique management statement.
76 Clearly, Landgate regarded the St George Bank consent page as satisfying the requirements of s 5C(3)(b) of the ST Act because Landgate registered the Oceanique management statement, inclusive of that page, as Instrument L335896, which is shown on the Oceanique strata plan as the management statement for the Oceanique scheme.
77 The Tribunal has decided that to the extent that the St George Bank consent page is a deviation from the prescribed form 25 because it is a separate page, under s 74 of the Interpretation Act, that deviation does not invalidate the Oceanique management statement. The fact that the St George management statement is a separate page does not materially affect the substance of the prescribed form 25. It is also not likely to mislead anyone, because both the Oceanique form 25 and the St George consent page are contained in Instrument L335896, which is recorded on the Oceanique strata plan as the management statement.
78 The Tribunal does not accept the applicant's contention that the signing of the management statement by the specified persons must unconditionally adopt the management statement and therefore must not be qualified. Section 5C(3) of the ST Act does not state that the specified persons must adopt the management statement, just that they must sign it. Accordingly, the question of whether the consent of St George Bank unconditionally adopted the Oceanique management statement does not arise. The question is whether St George Bank signed the Oceanique management statement, which the Tribunal has found that it did.
79 The part of the prescribed form 25 which provides for the signing of it by the specified persons requires firstly that their 'encumbrance document number' be stated, and secondly, that they sign.
80 The St George Bank consent page satisfies both of those requirements. It states the 'encumbrance document number' as mortgage K383963 and it is signed by Westpac on behalf of St George Bank.
81 It also states that St George Bank consents to the registration of the Oceanique management statement on the basis set out in three dot points. Those points are clearly aimed at St George Bank disclaiming responsibility for the by-laws set out in the Oceanique management statement, which is understandable since it would not have been involved in the drafting of them.
82 In the Tribunal's view, those additional points do not materially affect the substance of the prescribed form 25 and they are not likely to mislead. Therefore, under s 74 of the Interpretation Act, that deviation from the prescribed form 25 does not invalidate the Oceanique management statement.
83 In light of the above, the Tribunal has decided that the Oceanique management statement satisfied the requirements of s 5C(3) of the ST Act for the following reasons:
• the Tribunal finds that the St George Bank consent page is part of the management statement registered as Instrument L336896;
• to the extent that the St George Bank consent page deviates from the prescribed form 25, that deviation does not materially affect the substance of that part of that form and is not likely to mislead. Therefore, pursuant to s 74 of the Interpretation Act, that deviation does not invalidate the Oceanique management statement; and
• the St George Bank consent page states the 'encumbrance document number' as mortgage K383963 and it is signed by St George Bank, which satisfies the requirements of the prescribed form 25 and s 5C of the ST Act.
Conclusion regarding the s 5C(3) issue
84 For the reasons stated above, the Tribunal has determined the second issue in the affirmative; the requirements of s 5C(3) of the ST Act were complied with in respect of the Oceanique management statement.
Section 93(3) issue: the exercise of the discretion under s 93(3) of the ST Act
85 It is not necessary to deal with the s 93(3) issue in light of the decisions which the Tribunal has made in respect of the s 42(1) issue and the s 5C(3) issue.
Conclusion
86 In conclusion, the Tribunal has decided that:
• By-law 18(1) was made within the power given under s 42(1)(c) of the ST Act; and
• the requirements of s 5C(3) of the ST Act were complied with in respect of the Oceanique management statement.
- Therefore the application fails and must be dismissed.
Order
87 The Tribunal makes the following order:
1. The application is dismissed.
I certify that this and the preceding [87] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D AITKEN, MEMBER
Annexure A
Form 25
Strata Titles Act 1985
Section 5C(1)
STRATA/SURVEY-STRATA PLAN No.
MANAGEMENT STATEMENT
(Name of original proprietors of land the subject of the plan) ..............................
.................................................................................................................................
(Description of parcel the subject of the plan) .......................................................
.................................................................................................................................
This management statement lodged or to be lodged with a strata/survey-strata plan in respect of the above land sets out the by-laws of the strata company or amendments to the by-laws contained in Schedule 1 and/or Schedule 2 of the Strata Titles Act 1985 that are to have effect upon registration of the strata/survey-strata plan.
1. The Schedule 1 by-laws are amended, repealed, or added to as follows —
DATED THIS ........................... DAY OF ........................... 20 .......
SIGNATURE OF APPLICANT
in the presence of
Witness
Name
Address
Occupation
(TO BE SIGNED BY EACH APPLICANT)
ENCUMBRANCE Document & No
SIGNATURE
in the presence of
Witness
Name
Address
Occupation
(ADDITIONAL SIGNATURES AS REQUIRED)
[Form 25 amended in Gazette 17 Jan 1997 p. 490.]
1
3
4