MORAWA and CARROLL
[2008] WASAT 277
•24 NOVEMBER 2008
MORAWA and CARROLL [2008] WASAT 277
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 277 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:365/2008 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS J HAWKINS (MEMBER) | 23/11/08 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application successful | ||
| B | |||
| PDF Version |
| Parties: | HEINZ HALMUD MORAWA RENAE CARROLL MATHEW SPENCER SHARA SPENCER |
Catchwords: | Parking upon common property Vehicle turnaround area No written approval to park in vehicle turnaround area Respondents ordered to refrain from doing so |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 32 Strata Titles Act 1985 (WA), s 17, s 81, s 83, Sch 1, Sch 2 |
Case References: | Kioa v West (1985) 159 CLR 550 |
Orders | 1. The owners, occupiers and visitors of Lot 3 of No 32 Russell Street, Morley refrain from parking upon the common property driveway without the written approval of the strata company.,2. The owners of Lot 3 of No 32 Russell Street, Morley shall take all necessary steps to ensure that the occupiers or visitors of Lot 3 comply with by-law 1 of Schedule 2 of the Strata Titles Act 1985 (WA). |
Summary | The applicant sought orders to prevent the respondents parking upon the common property driveway, without written permission of the strata company. Due to the nature of the dispute, it was agreed by the parties that it be determined on the documents.,On the basis of the information before it, the Tribunal found that the respondents had parked in the common property driveway without written permission of the strata company. The respondents were ordered to refrain from doing so without the written approval of the strata company. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : MORAWA and CARROLL [2008] WASAT 277 MEMBER : MS J HAWKINS (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 24 NOVEMBER 2008 FILE NO/S : CC 365 of 2008 BETWEEN : HEINZ HALMUD MORAWA
- Applicant
AND
RENAE CARROLL
MATHEW SPENCER
SHARA SPENCER
Respondents
Catchwords:
Parking upon common property - Vehicle turnaround area - No written approval to park in vehicle turnaround area - Respondents ordered to refrain from doing so
Legislation:
State Administrative Tribunal Act 2004 (WA), s 32
Strata Titles Act 1985 (WA), s 17, s 81, s 83, Sch 1, Sch 2
(Page 2)
Result:
Application successful
Category: B
Representation:
Counsel:
Applicant : N/A
Respondents : N/A
Solicitors:
Applicant : N/A
Respondents : N/A
Case(s) referred to in decision(s):
Kioa v West (1985) 159 CLR 550
(Page 3)
Summary of Tribunal's decision
1 The applicant sought orders to prevent the respondents parking upon the common property driveway, without written permission of the strata company. Due to the nature of the dispute, it was agreed by the parties that it be determined on the documents.
2 On the basis of the information before it, the Tribunal found that the respondents had parked in the common property driveway without written permission of the strata company. The respondents were ordered to refrain from doing so without the written approval of the strata company.
Background
3 Mr Heinz Halmud Morawa (applicant) is the joint owner with his wife of Lot 2 of a three lot strata development, known as No 32 Russell Street, Morley (strata complex).
4 Ms Renae Carroll is the owner of Lot 3 of the strata complex, and it is understood that Mr Mathew Spencer and Ms Shara Roberts are, or were at the time of the filing of the application, the occupants of Lot 3 (respondents).
5 On 13 March 2008, the applicant lodged an application seeking orders against the respondents. The orders sought were as follows:
1. The respondent must refrain with immediate and ongoing effect from using any portion of that part of the vehicle turnaround located on the common property immediately east of the strata lot of the owners of Lot 32B as shown on the attached plan.
2. The respondent must remove with immediate effect from the common property any vehicle that is not specifically provided for in the by-laws of the strata company and not to cause any such vehicle to be parked within the common property again without complying with the by-laws.
3. The respondent must take all necessary steps to ensure that his family and/or guests or tenants comply with these orders.
6 The matter has been the subject of several attempts at mediation. Despite those attempts, the matter failed to resolve.
7 The matter was therefore the subject of a final directions hearing on 7 October 2008 when timetabling orders were made to allow the parties to file and serve any further information upon which they intended to rely. It was further
(Page 4)
- ordered that, upon completion of the time for compliance with those orders, the matter be set down for determination on the papers.
Evidence and submissions
8 Despite the orders made on 7 October 2008, neither party filed any further information. Therefore, the only information upon which the Tribunal was able to determine this matter was that filed by the applicant prior to 7 October 2008.
9 The respondents have not taken the opportunity to file any submissions or documentation in response to this application.
10 In his original application, the applicant set out in a schedule to the application the grounds upon which he sought the orders claimed. That schedule states as follows:
1. There is an area immediately adjacent to Strata Lot 2 at 32B Russell Street, Morley which was originally provided for the purposes of vehicle turnaround.
2. On the wall on the site of the property forming the strata lot at 32B immediately adjacent to the parking area is the applicant's meter box and also an exit from the applicant's premises.
3. For the period from January 2005 the respondent has had visitors parking in the reversing bay which affects the amenity and use of 32B Russell Street, Morley.
4. The applicant has made numerous approaches to Ms Carroll and/or her agent for the purposes of seeking to have some remedy or address the problem which exists as there is reluctance to take action.
5. The following vehicles['] registration numbers have been parked on numerous occasions:-
1AYZ-120, 1AGP-531, 1NE-899, 1NI-395, 1BAU-558, 8PS-110
6. The specific problems are a large Tarago 1AUA-493 in the last six months on the 5th January 2007, 13th January 2007, 14th January, 2007, 18th January to 21st January 2007, 26th January, 2007, 27th January, 2007, 31st January, 2007, 6th April 2007, 8th April, 2007. One large four wheel drive on previous occasions in 2006 and from 14th January and the 15th March 2007. One large black ford four wheel drive territorial on 24th March, 25th March. Licence plate: One large Honda Rav four wheel drive 28th January, 2007, 9th February to
- 11th February 2007, 16th February to the 20th February, 2007, 25th February, 2007 to the 27th February, 2007, 3rd March, 2007, 14th April, 2007, 19th May, 2007. Annexed hereto and marked with the letters "A" are copies of the vehicles parked exhibiting the blocking or assumption of space in the parking area. Annexed hereto is a plan. There has now been a change in tenant and the same problems are occurring again.
- 7. The respondent has refused to acknowledge that there is a problem.
8. The applicant is an elderly man and the stress caused by dealing with parking disputes is severely impacting on the applicant's health and general well-being. (Copied from the original with no amendment)
11 On 29 April 2008, the applicant also filed, amongst other things, a copy of the strata plan and various other documents.
12 The strata plan reveals that the strata complex consists of three single storey brick and tile residential dwellings.
13 That plan reveals that the three dwellings are built immediately behind each other. The only common property of the strata complex is the driveway that runs immediately adjacent to the western boundary of the strata complex with what appears to be a vehicle turnaround area adjacent to Lot 2 and Lot 3. Each lot has a garage to accommodate vehicles. It appears that there is no allocated area on the strata plan for visitor car parking.
14 A copy of the strata plan is attached to these reasons and marked 'Attachment 1'.
15 The applicant also provided a variety of other documents in support of the application. They included a copy of the minutes of the inaugural meeting of the strata company held on 17 June 2002 (Minutes). The Minutes reveal that the strata company adopted the by-laws in Sch 1 and Sch 2 of the Strata Titles Act 1985 (WA) (ST Act).
16 The Minutes also state that no Annual General Meeting would be held in the future. At that meeting, an item discussed under general business was as follows:
It was informed there was a parking problem between Lots 2 and 3. The proprietors of Lot 2 require access to the meter box. The proprietor of Lot 3 is to park in such a manner to allow access to meter box and also to allow the proprietors of Lot 2 to be able to reverse into their garage.
(Page 6)
- The Proprietors of Lot 2 are to park adjacent to their garage, to allow sufficient access down the driveway for Lot 3.
17 Also included in the documents are handwritten notes, presumably from the applicant, raising concerns about parking on the common property driveway by the owners and occupants of Lot 3. Those notes refer to a range of vehicle registration numbers. The notes also refer to an arrangement that the applicant had originally agreed with Ms Carroll that she could park her small sedan in front of and close to her entrance door. The notes go on to state that Ms Carroll's visitors ignored that arrangement and considered that the vehicle turnaround is for all to use and is not for the exclusive use of the owners of Lot 3. In addition to these points, the applicant raises concerns that parking in the vehicle turnaround area affects his access to his meter box, fire emergency exit and working space for the garden.
18 There are also letters from Mr Andrew Davey, who has appeared with leave of this Tribunal, as an agent for Ms Carroll. These letters are dated 2 May 2007 and 27 February 2008. These letters are addressed to the applicant's solicitors, Lynn & Brown Lawyers. These letters appear to be in response to complaints as to parking upon the common property driveway. In a letter dated 27 February 2008, Mr Davey states as follows:
We are tired of our tenants being harassed by your client. If they wish to go to court on this issue then we are happy to see them there. We have some issues of our own we would like to take up with them.
We have constant complaints from our tenants that they are aggressive, rude and intrusive. They also impede the reversing bay with objects.
As always, we tell the tenants what they can and can not do which includes not parking for extended periods in front of the driveway but they are welcome to park in the reversing bay. We will remind the tenants of this again. We also tell them that your clients can park in front of their garage, as long as it does not impede the entry or exit of the tenants' vehicles.
We would also like to take the opportunity to request that your client stop harassing our tenants, stop placing objects in or near the reversing bay and refrain from telling the tenants that they can not park in the reversing bay because it is a fire escape.
Can I request that you place a contact name on any correspondence to me in the future. (Copied from the original with no amendment)
(Page 7)
Findings and consideration
19 In this case, the applicant seeks various orders from the Tribunal to prevent the owners and occupiers of Lot 3 from parking upon common property.
20 It appears from the papers that the concern relates specifically to the owners and/or occupiers of Lot 3 using an area immediately adjacent to Lot 3 to park vehicles. This area has been referred to by the applicant as a "turnaround" area (vehicle turnaround area).
21 There has been ongoing controversy between the owners of Lot 2 and Lot 3 in respect to parking upon the common property driveway. It is accepted by the applicant that the vehicle turnaround area can be used to allow vehicles to reverse into, but not for parking.
22 Not only has there been concerns by the owners of Lot 2 as to the owners and occupants of Lot 3 parking in the vehicle turnaround area, but originally it appears the owners of Lot 3 raised problems with the manner in which the owners of Lot 2 parked upon the driveway, thereby preventing them from exiting.
23 The driveway is a shared driveway and runs down the side of the strata complex. It is of such a design that if lot owners use any part of the driveway to park their vehicles, they could prevent each other from exiting the driveway.
24 To avoid having to reverse down the driveway, the vehicle turnaround area adjacent to Lot 2 and Lot 3 would allow the owners and occupiers of Lot 3 to reverse into that area to enable them to drive forwards to exit the driveway.
25 The vehicle turnaround area is part of the common property of the strata complex.
26 Section 17 of the ST Act provides that common property is held by proprietors as tenants in common.
27 By-law 2(a) and by-law (2)(c) of Sch 1 of the ST Act provide that proprietors or occupiers must use and enjoy common property in such a manner as not to unreasonably interfere with the use and enjoyment thereof by other proprietors and to take all reasonable steps to ensure that visitors comply with the by-laws relating to the parking of motor vehicles.
28 By-law 1 of Sch 2 of the ST Act states as follows:
(Page 8)
- A proprietor, occupier, or other resident of a lot shall not park or stand any motor vehicle upon common property, except with the written approval of the strata company.
29 By-law 2 of Sch 2 of the ST Act provides:
A proprietor, occupier, or other resident of a lot shall not obstruct lawful use of common property by any person.
30 Although there appears to have been some agreement between the owner of Lot 2 and Lot 3 at the inaugural meeting of the strata company as to the manner in which each could park upon common property, it is clear that over time there have been ongoing disagreements between Mr Morawa and Ms Carroll as to the use of the vehicle turnaround area.
31 Unfortunately, the respondents have not provided any information to assist in the determination of this matter.
32 The applicant has provided various vehicle registration numbers of vehicles that have parked upon the driveway. There is no information, however, as to who are the owners of such vehicles. The applicant contends, however, that the vehicles only belonged to the occupiers of Lot 3 or the visitors of the occupiers of Lot 3.
33 In the applicant's handwritten notes, he makes particular reference to Mr Davey parking upon the driveway, and further in the application, states that from January 2005, Ms Carroll has had visitors parking in the vehicle turnaround area.
34 Section 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) makes clear that the Tribunal is not bound by the rules of evidence.
35 The Tribunal is able to consider all credible, relevant and significant information: see Kioa v West (1985) 159 CLR 550.
36 The applicant seeks orders preventing the owners, occupiers or visitors of Lot 3 parking in the vehicle turnaround area.
37 Section 83 of the ST Act states as follows:
The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of,
(Page 9)
- or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme on any person entitled to make an application under this subsection or on the council or the chairman, secretary or treasurer of the strata company.
38 It is unfortunate that the respondents have not provided any information to the Tribunal to assist in the making of this decision. There is uncontested information from the applicant that Ms Carroll and her visitors have, from time to time, parked in the vehicle turnaround area. From the information provided by the applicant, it can be implied that this has included other occupants of Lot 3.
39 I am satisfied therefore, upon the information provided, that either the owners or occupiers or visitors of Lot 3 have been parking upon the common property driveway - in particular, in the vehicle turnaround area. There is no evidence that those persons have the written approval of the strata company to do so, as required by by-law 1 of Sch 2 of the ST Act.
40 As such, it is not necessary to consider any further contention by the applicant, in particular that the use of the vehicle turnaround area, to park vehicles, impedes his access to common property.
41 The applicant has sought a range of orders in respect to parking in the vehicle turnaround area. Section 81(1), s 81(2) and s 81(3) of the ST Act state as follows:
(1) The State Administrative Tribunal may make an order sought by the applicant and an order made may be expressed in terms different from the order sought, so long as it does not differ in substance from the order sought.
(2) An order made may include such ancillary or consequential provisions as the State Administrative Tribunal thinks fit.
(3) The State Administrative Tribunal may order a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot to do, or to refrain from doing, a specified act with respect to a parcel.
42 Having made the above findings, I consider it appropriate to order that the owners, occupiers or visitors of Lot 3 refrain from parking in the common property driveway.
43 To comply with such an order requires the owners, occupiers or visitors of Lot 3 to remove any vehicles that are currently parked upon the common property driveway. In addition, given the ongoing nature of this dispute and the
(Page 10)
- findings made above, it is appropriate to also grant the consequential order requiring the owners of Lot 3 to take all necessary steps to ensure that the occupiers or visitors of Lot 3 comply with by-law 1 of Sch 2 of the ST Act.
44 As an aside, I would add that the documents reveal that at one time there was concern as to the manner in which the owners of Lot 2 were parking upon the driveway. Given the orders I will make in this matter, it is a timely reminder to all lot owners of the strata complex to ensure that they comply with the applicable by-laws concerning parking upon common property.
Orders
45 The Tribunal makes the following order:
1. The owners, occupiers and visitors of Lot 3 of No 32 Russell Street, Morley refrain from parking upon the common property driveway without the written approval of the strata company.
2. The owners of Lot 3 of No 32 Russell Street, Morley shall take all necessary steps to ensure that the occupiers or visitors of Lot 3 comply with by-law 1 of Schedule 2 of the Strata Titles Act 1985 (WA).
I certify that this and the preceding [45] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J HAWKINS, MEMBER
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