MORI and OWNERS OF 196 COODE STREET COMO STRATA PLAN 4151
[2005] WASAT 225
•25 AUGUST 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: MORI and OWNERS OF 196 COODE STREET COMO STRATA PLAN 4151 [2005] WASAT 225
MEMBER: MR T CAREY (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 25 AUGUST 2005
FILE NO/S: CC 2285 of 2005
BETWEEN: YOSHIKO MORI
Applicant
AND
OWNERS OF 196 COODE STREET COMO STRATA PLAN 4151
Respondent
Catchwords:
Strata titles - Claim for reimbursement of expenditure incurred to eradicate termites in structure of carport - Part of exclusive use area - Responsibility for maintenance of carport - Claim of party's agent for costs - Strata Plan 4151
Legislation:
Strata Titles Act 1985 (WA), s 35(1)(c), s 42(11)(b), s 81(7)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant: Not applicable
Respondent: Not applicable
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant sought reimbursement of amounts expended by her for the inspection and treatment of termites found in the structure of a carport in respect of which the applicant has exclusive use.
The Tribunal decided that the applicant was not entitled to be reimbursed, both because of the contents of the by‑law granting exclusive use over the relevant area and because of provisions of the Strata Titles Act 1985 (WA) (the Act) relating to exclusive use by‑laws.
Introduction
The applicant is the owner of lot 2 in an 8 lot strata scheme. The plan was registered in 1976. On 13 December 2000, a notification of change of by‑laws was registered on the title, the new by‑laws imparting exclusive use on all the proprietors of "the common area" (common property) at the front and rear of the proprietors' respective lots and of "the common area for the width and depth of the carport/garage (as shown) on the plan". The new by‑laws are numbered 16 and 17 respectively. Despite the reference in by‑law 17 to the carports/garages being shown on the plan, there is no such indication on the plan. However, the fronts and rears of lots the subject of by‑law 16 are shown, and there is evidence that the applicant's carport is situated entirely within one of those areas in respect of which she has exclusive use.
It is part of by‑law 16 that "the proprietors … shall keep and maintain the ground within the (exclusive use) area, to a reasonable and acceptable standard … and shall maintain and keep in good state of repair the improvements erected thereon …". There is no reference to maintenance in by-law 17.
According to a document filed by the applicant with her application, on 8 March 2005 she found active termite activity "in the pole which divides the property, that is, belongs to the common space". Another of the applicant's documents describes the termite activity as occurring "at the carport of unit 2". Inspection reports by two different pest control companies in respect of specifically the applicant's lot confirm this description, one referring to "activity … located to posts of unit 2", and the other to "… active termite … workings to door frame and wall frames of garage …", as does the invoice of Budget Pest Control referred to below.
The applicant sought to recover from the strata company the following amounts expended by her in relation to the termite problem:
Absolute Pest Control – Termite Inspection Report $154.00
Budget Pest Control - "Drill and inject Garage" $250.00
$404.00
The strata company has refused to reimburse these expenses, primarily, it would appear, on the ground that the problem was one affecting part of the applicant's exclusive use area for which she is responsible. A secondary objection has been raised concerning the need for the inspection and report of Absolute Pest Control.
I will deal now with the first issue concerning who has responsibility for maintaining the structure of the carport on the exclusive use area appurtenant to lot 2, which I have found to be determinative of the application.
Who is responsible for the carports?
Going by the documents filed by the applicant, she has been guided by information received by telephone from a Department of Land Information's officer that the strata company was obliged to cover the cost of rectifying the termite activity on the basis that it concerned part of the common property. It would also appear on the basis of her statements that there was a level of ambivalence in the responses she received from the strata company to her demands. Regardless, it is necessary for me to determine as a matter of law with whom the ultimate responsibility for the maintenance of the carport structure lies. In my view, the answer to that legal question is clearly the applicant, as the proprietor having the benefit of the exclusive use by‑laws.
Although it is true that the carport is part of the common property, it is also true that the applicant has exclusive use of the carport, pursuant to both by‑law 16 and by‑law 17. By‑law 17 deals specifically with the entire dimensions of the carport which, it would seem incorrectly, are referred to in the by‑law as being shown on the plan. There could however be no misunderstanding as to which carport was to be the subject of exclusive use of which proprietor, given that at least in the case of the applicant's lot, and, I have no doubt, in the case of all the lots, the carport (or garage) is situated on either the front or rear common property areas which have had bestowed exclusive use status by by‑law 16. If one simply focuses on by‑law 16, in any case such as the applicant's where there exists, in an exclusive use area, any improvement such as a carport or garage, the proprietor of the relevant lot is required by the by‑law to maintain and keep it in a good state of repair.
When one considers the sections of the Act relating to exclusive use, the same result follows. Section 42(11)(b) provides that, unless excused by the by‑law, the proprietors of a lot in respect of which an exclusive use by‑law is in place is responsible for the performance of the duty of the strata company under s 35(1)(c) of the Act in respect of the part of the common property to which the by‑law relates. The duty of the strata company referred to is relevantly to keep in good and serviceable repair and properly maintain the common property. Neither of the by‑laws 16 nor 17 excuses the proprietor from responsibility under s 42(11)(b), and in the case of by‑law 16, the opposite is the case.
For these reasons, the applicant is responsible for maintaining the carport structure on the exclusive use area of her lot. The consequence of this is that the applicant is not entitled to reimbursement from the strata company for any of the expense incurred by her for the detection and treatment of termite activity in part of the carport structure and her application must be dismissed.
Application by strata company's agent for costs and expenses
Mr Robert Auguste appeared for the strata company at a directions hearing in the Tribunal, and prepared a document responding to an order made at the directions hearing in terms that "(t)he respondent to have leave to amplify its response by filing and serving further submissions", as well as the original response document. Mr Auguste is not a proprietor, but says he was instructed by the proprietors to represent them. He describes himself as a real estate property manager and registered real estate sales person. There was during the period that the applicant was seeking reimbursement from the strata company a change in the identity of the strata manager of the scheme. Mr Auguste is not connected with the new strata manager, but it is not clear whether he has any connection with the previous one.
Mr Auguste has complained about certain procedural matters regarding his interface with the Tribunal in relation to the matter which it is not necessary to detail here, but about which he should not feel restrained about raising with the Executive Officer of the Tribunal if he wishes to do so. More pertinent for my purposes, Mr Auguste seeks an order for costs against the applicant, relating to the time he has spent on the matter, the cost of obtaining "professional advice", and parking costs, presumably incurred on the occasion of the directions hearing.
The short answer to Mr Auguste's claim is provided by s 81(7) of the Act, which states that the Tribunal "cannot make any order for the payment of costs in connection with an application for an order", with two exceptions, neither of which applies in this case. There may have existed further obstacles to Mr Auguste's claim, for example, arising from his status as an agent rather than a party, and the nature of the costs claimed by him. However, it is unnecessary to go into these matters, as s 81(7) represents a complete answer to his claim.
Order
The application is dismissed.
I certify that this and the preceding [16] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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