MOLLER and CRUDELI

[2005] WASAT 189

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   MOLLER and CRUDELI [2005] WASAT 189

MEMBER:   MR T CAREY (MEMBER)

HEARD:   DETERMINED ON THE PAPERS

DELIVERED          :   1 AUGUST 2005

FILE NO/S:   CC 181 of 2005

BETWEEN:   STEVEN MOLLER

Applicant

AND

SAMANTHA CRUDELI
Respondent

Catchwords:

Strata titles - Dog causing nuisance to other occupants - Application of s 81(1) Strata Titles Act - Discretion of Tribunal under s 92 Strata Titles Act - Strata Plan 10738

Legislation:

Strata Titles Act 1985 (WA), s 81(1), s 92

Result:

Application successful in part.  Order for respondent to take specified action in relation to her dog

Category:    B

Representation:

Counsel:

Applicant:     Self­represented

Respondent:     Self­represented

Solicitors:

Applicant:     Self-represented

Respondent:     Self-represented

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's Decision

1. The applicant, who is the owner of a lot in a strata complex, sought removal from the complex of another owner's dog on the grounds of the dog's uncontrolled access to the common property and other owners' lots and disruptive behaviour when in those areas.

2. The Tribunal decided that although the requirements for an order for removal were satisfied, in the circumstances of the matter, including the respondent's contrition and undertaking to exact better control, it should exercise its discretion to order that the respondent take action designed to terminate the likelihood of problems recurring.

The plan and relevant Act

1. Strata Plan 10738 (the plan) was registered on 22 July 1982, pursuant to the Strata Titles Act 1966 (WA) (the 1966 Act). In 1985, the 1966 Act was repealed and replaced by the Strata Titles Act 1985 (WA) (Act), which continues to be the relevant Act.

Parcel

1. The parcel is known as "Yokine Heights" and is situated 121 Hayes Avenue, Yokine.  The parcel includes nine lots.  By reason of a change of the strata company's by‑laws in 1997, each lot has the exclusive use of a carport and two yards, one at the front, and one at the rear.  According to the plan, there are in addition sizable strips of common property surrounding the lots.

Application

1. By his application filed on 4 February 2005, the applicant sought an order under s 92 of the Act that the respondent cause the respondent's dog to be removed from the parcel. The grounds for the application were expressed in the following terms:

   "That Samantha is continually failing to abide by strata regulations with regard to dog ownership on strata properties ie: she allows her dog to roam without a leash on common property, creating a nuisance, causing fright, disruption, defecating on other residents private property, entering other units and barking at other residents.  Residents at unit 9 have been particularly targeted as they have a small child.  All this happens, despite numerous requests and warnings from the strata manager and other owners, tenants and landlords."

2. Mr Moller is the owner of lot/unit 9, which is leased to tenants.

Relevant statutory provisions

1. Section 92 of the Act provides:

   "Where, pursuant to an application by … a proprietor …of a lot for an order under this section, the State Administrative Tribunal considers that an animal kept on a lot or the common property in accordance with the by‑laws causes a nuisance or hazard to the proprietor … or unreasonably interferes with the use and enjoyment of another lot or of the common property, the State Administrative Tribunal may — 

   (a)order the person keeping the animal to cause the animal to be removed from the parcel within a specified time, and thereafter to be kept away from the parcel; or

   (b)order the person keeping the animal to take, within a time specified in the order, such action as is specified in the order and, in the opinion of the State Administrative Tribunal, will terminate the nuisance, hazard or unreasonable interference."

Evidence and other material in support of application

1. The applicant relied upon the following material:

   (a)Letters dated 27 or 28 January 2005, in similar terms, from the residents of three other lots in the parcel, complaining, relevantly, about the respondent's "large" or "very large" dog.  The letters objected to:

   •the dog being allowed to wander about the complex without a lead;

   •the dog defecating on the lawns surrounding the lots and one of the resident's carport and side path; and

   •the dog lacking discipline and confronting people.

   The letters referred to the frequency of the dog's "wanderings" in terms of "on many occasions", "on several occasions" and "on numerous occasions".

   (b)extracts from the applicant's diary spanning the period 10 September 2003 to 27 January 2005 which included references to a number of telephone discussions with the tenants of lot 9 raising concerns in relation to the respondent's dog, contacts made of the strata manager to register the complaints and request action be taken, the holding of an annual general meeting at which the same issue was discussed and direction made by the council of owners for the strata manager to write to the respondent, and to letters from the strata manager to the respondent issued on or about 19 September 2003, 11 May 2004, 15 May 2004 and 2 June 2004;

   (c)copies of some of the letters from the strata manager.  The letter dated 2 June 2004 advised that the strata manager was instructed by the council of owners that if the dog was seen on the common property without a leash after 9 June 2004, the council would "consider (as they are entitled to) whether to ban the dog completely from anywhere (including your unit) on the strata complex".

   Despite the letter of 2 June 2004, according to the excerpts from the applicant's diary, complaints from the tenants continued, culminating in a telephone call from the tenants on 25 January 2005.  According to the extract:

   "They were very distressed.  The dog had just been in their carport a few minutes ago when they were farewelling a guest.  The dog had nearly bitten the guest who had to jump into their car to avoid being bitten.  The little girl was also very frightened …"

Response to application

1. The respondent filed a formal response statement, which provided the following reasons or grounds for opposing the application:

   "This application is a surprise and the last thing I expected as my dog Jasmine is my life.  I have had Jaz for nine years since she was a puppy.  She is totally under my control and command.  She only ever barks when there is someone around that shouldn't be lingering around and that has been late at night when I let her out for toilet before we go to bed.  This has happened a few times and twice when there were men in balaclavas which I reported to the police.  So I feel she is good for me and the other residents as she is a deterrent for these undesirables.  Jaz lives indoors with me and may have been outside when not attended only because I have had a lot of renovating done in the past 6 mths and doors have been left open as tradesm[a]n [sic] are in and out all the time.  Also have had a couple of friends visit and I may have gone out for a while and they not [sic] used to having a dog around forget to close doors.  So I do apologise greatly for these times.  Jaz is taken special care off [sic] by me and I'm responsible and I apologise for any past actions and I promise to adhere to more stringent controls.  These actions being only of small holes in which she would lay [sic] in to keep cool that of [sic] being in the hotter weather.  Jaz is a big part of my life and I do hope the good of having her around not only for me but the safety of all in this complex."

2. No other response has been filed.

Consideration

1. I am satisfied on the evidence that the dog kept by the respondent on her lot has caused a nuisance or hazard to one or more residents of other lots in the parcel. I am also satisfied by reason the number of complainants, and the number of complaints by individual complainants, that the respondent has failed to sufficiently control her dog which has resulted in the dog being permitted to roam around the common property and onto individual lots on many occasions. There is no evidence before me of the breed of the dog, but it is a large dog, with the potential of causing concern, if not actual injury, to other residents and visitors, and in particular to children. There is also consistent evidence of a number of instances of defecation, on the common property and at least one individual lot. The evidence is also sufficient to establish the alternative basis action under s 92 of unreasonable interference with the use and enjoyment of another lot or of the common property.

2. Having so decided, s 92 allows me to make an order that the respondent cause the animal to be removed from the parcel, or, alternatively, that the respondent take certain action which in the opinion of the Tribunal will terminate the nuisance, hazard or unreasonable interference. The applicant seeks an order in terms of the first (removal) alternative. Section 81(1) of the Act allows the Tribunal to express its order in terms different from the order sought, so long as it does not differ in substance from the order sought. Although, on a narrow interpretation, this might preclude the Tribunal from granting an order of the alternative type referred to in s 92, the better view is that once there has been established either of the conditions to which s 92 refers, the Tribunal has a discretion to act in any of the ways contemplated by the section.

3. The first thing to be said about the Tribunal's discretion under s 92 is that it is at large, so that, even where one of the grounds set out in the section is satisfied, the Tribunal is not bound to make any order. This aspect of the discretion permits the Tribunal to make no order in appropriate cases having regard to either the nature of the nuisance or interference or its frequency. For example, where a dog owner generally has his or her dog under control and does not permit transgressions affecting other residents, but an isolated transgression occurs, that may be a circumstance where the Tribunal would decline to make any order. The evidence which I have accepted dictates that this in not such a case.

4. In relation to the alternative orders which are open, the applicant has sought the more serious and harsher alternative of removal of the respondent's dog from the parcel.  He relies upon the quite lengthy period of time during which the difficulties have continued, the seriousness of some of the incidents, and the respondent's apparent refusal to improve her controlling of the dog in the face of numerous complaints.  I note that in her response statement, the respondent expressed her surprise that the application had been issued.  Bearing in mind the course of correspondence preceding the application, this statement is more than a little disingenuous.

5. I have, however, taken into account the respondent's expression of contrition for such incidents as have occurred, as well as her promise to keep her dog under stringent control.  I have also had regard to the respondent's attachment to the dog, and to her assessment of the dog as a deterrent to potential wrongdoers.

6. In my view, the respondent should be given an opportunity to comply with her undertaking to better control her dog in future.  I am therefore not prepared to grant the order sought, but rather, to order the respondent to control her dog in a way which will in my opinion terminate the nuisance, hazard or unreasonable interference.

Order

1.There is an order under s 92 of the Strata Titles Act1985 (WA) that at any time when the respondent's dog is on the common property or on a lot other than the respondent's lot, the respondent shall ensure:

(a)that the dog is on a leash controlled by the respondent or other adult person at the direction of the respondent; and

(b)that the respondent or other person controlling the dog has and uses, if required, a plastic bag or other receptacle for any droppings eventuating on the common property or lot.

I certify that this and the preceding [16] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR T CAREY, MEMBER