Nelson and Anor and the Owners Of Mt Eliza Apartments - Strata Plan 24594
[2006] WASAT 106
•2 MAY 2006
NELSON & ANOR and THE OWNERS OF MT ELIZA APARTMENTS - STRATA PLAN 24594 [2006] WASAT 106
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 106 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | STR:108/2004 | ON THE DOCUMENTS | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 2/05/06 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Application successful – proceedings dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL JOHN NELSON CHRISTINE MARGARET WENZEL THE OWNERS OF MT ELIZA APARTMENTS - STRATA PLAN 24594 |
Catchwords: | Strata titles Application to dismiss proceedings as being vexatious or abuse of process Effect of earlier proceedings Whether open to advance series of compensation claims each for amounts below statutory limit Whether claim lies against respondent for alleged raising of levies without proper authority, or for unauthorised expenditure |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 47, s 47(2), s 47(3), s 47(7), s 48, s 49 State Administrative Tribunal Regulations 2004 (WA), reg 28 Strata Titles Act 1985 (WA), s 83, s 83(1), s 84, s 84(1), s 84(1)(a) Vexatious Proceedings Restriction Act 2002 (WA), s 3 |
Case References: | Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Nelson & Anor v Owners of Mount Eliza Apartments – Strata Plan 24594 [2005] WADC 5 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Ronald Colin Dye & Ors v The Griffin Coal Mining Co Pty Ltd & Anor [1998] WASCA 184 (23 July 1998) Nil |
Orders | 1. The proceedings are dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA). |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : NELSON & ANOR and THE OWNERS OF MT ELIZA APARTMENTS - STRATA PLAN 24594 [2006] WASAT 106 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : ON THE DOCUMENTS DELIVERED : 2 MAY 2006 FILE NO/S : STR 108 of 2004 BETWEEN : MICHAEL JOHN NELSON
- CHRISTINE MARGARET WENZEL
Applicants
AND
THE OWNERS OF MT ELIZA APARTMENTS - STRATA PLAN 24594
Respondent
Catchwords:
Strata titles Application to dismiss proceedings as being vexatious or abuse of process Effect of earlier proceedings Whether open to advance series of compensation claims each for amounts below statutory limit Whether claim lies against respondent for alleged raising of levies without proper authority, or for unauthorised expenditure
(Page 2)
Legislation:
State Administrative Tribunal Act 2004 (WA), s 47, s 47(2), s 47(3), s 47(7), s 48, s 49
State Administrative Tribunal Regulations 2004 (WA), reg 28
Strata Titles Act 1985 (WA), s 83, s 83(1), s 84, s 84(1), s 84(1)(a)
Vexatious Proceedings Restriction Act 2002 (WA), s 3
Result:
Application successful – proceedings dismissed
Category: B
Representation:
Counsel:
Applicants : Miss C Wenzel
Respondent : Mr N Day
Solicitors:
Applicants : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Nelson & Anor v Owners of Mount Eliza Apartments – Strata Plan 24594 [2005] WADC 5
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Ronald Colin Dye & Ors v The Griffin Coal Mining Co Pty Ltd & Anor [1998] WASCA 184 (23 July 1998)
Case(s) also cited:
(Page 3)
Nil
(Page 4)
Summary of the Tribunal's decision
1 The applicants applied under s 83 of the Strata Titles Act 1985 (WA) (ST Act) for 73 different orders for compensation against the respondent, a strata company. The respondent applied for the proceedings to be dismissed on the grounds that the proceedings were vexatious or an abuse of process.
2 The applicants were at all relevant times owners as tenants-in-common of a lot on the relevant strata plan. Their claims were based upon allegations that the respondent had, without proper authority, raised special levies and had also incurred expenditure which was not authorised. Other claims were based on what might be summarised as being allegations of mismanagement by the company.
3 There had been a long history of disputation between the applicants and the respondent which resulted in two previous applications to the Strata Titles Referee, an appeal to the District Court by the applicants and a further appeal by the applicants to the Supreme Court against the decision of the District Court.
4 Fifty-six of the claims had previously been dealt with as a single claim for compensation in an amount of $67 887. As a result of the Strata Titles Referee drawing to the applicants' attention his concern that s 84 of the ST Act would preclude the award of an amount in excess of $1000, the application was amended so that each of the 56 claims was for an amount below that statutory limit.
5 The Tribunal concluded that on a proper construction of s 84, it was open to a party to include several claims in a single application, provided each claim constituted a separate "dispute". The Tribunal considered that a dispute encompassed all the elements which must be established to entitle a party to the relief claimed.
6 The parties had filed all documentation upon which they relied so that the Tribunal was able to assess the elements of each claim and whether there was any sufficient evidence to support the claims. The Tribunal concluded that there was no evidence provided by the applicants which could establish that the levies had been improperly raised. Nor was there any evidence which could establish that the applicants had suffered any loss as a result of payment of the levies, which had been expended on common property partly owned by the applicants as tenantsincommon
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- proportionate to their unit entitlement. It had also not been shown that the payment of these levies had been made under any mistake of fact, or law or under any reservation of rights.
7 In relation to the allegations that expenditure had been incurred which was not in accordance with the authority granted, the Tribunal found that even if the works carried out had deviated in any significant respect from that authorised, the majority of the owners had by their conduct ratified the work carried out. In view of these findings, it was not strictly necessary to address the alleged splitting of claims, but the Tribunal noted that, in relation to the first 25 claims, substantial levies had become payable, and implicitly had been paid, in two tranches, so that the attempt to split these into more than two claims was an abuse of process. In relation to the remaining claims, there was insufficient evidence to show how the levies raised and implicitly paid related to the claim, which resulted in the claims being embarrassing and would probably result in them being categorised as a fewer number of disputes than the claims presently made. Nevertheless, it could not be concluded that the remaining claims presently constituted an abuse of process.
8 The Tribunal concluded that of the remaining claims all fell to be dismissed on the basis that they were misconceived, one on the ground that it was frivolous and one other because it was vexatious. Claims were considered to be misconceived because the Tribunal found that it was not open to the applicants to complain about the wide scope of the authority given to the Council of the respondent, when that authority had been approved by a majority of proprietors. Further, that the decisions and acts of the Council had bound the respondent and its members. Such actions or decisions were held not to give rise to any claim against the respondent itself. In particular, to the extent that there had been some expenditure in excess of that authorised, the Tribunal concluded that the majority of owners had ratified the expenditure by their conduct. The Tribunal held that this also applied in respect of a claim for alleged expenditure on legal costs in excess of that authorised but held that the claim was frivolous because the applicants' combined share of that expenditure amounted to only $15.95. The claim held to be vexatious related to a dispute concerning an entitlement to a pro rata share of an alleged right to reduce the wages of a cleaner. The claim was dependent on the applicants showing that one of them had been authorised to negotiate that reduction but the evidence produced by the applicants showed the contrary. The Tribunal considered that the claim had been raised for ulterior purposes.
(Page 6)
9 In consequence of the above findings, the proceedings were dismissed under s 47 of the State Administrative Tribunal Act 2004 (WA).
The application
10 On 23 September 2004, the applicants lodged an application with the Strata Titles Referee seeking three interim orders and 18 final orders against the respondent. By letter dated 11 October 2004, the Registrar for the Strata Titles Referee wrote to the applicants requiring the production of a current certificate of title for Lot 20 which they alleged they owned and also raising concerns about the relief claimed in five of the final orders sought. The concern was that the amounts claimed in each order exceeded the statutory limitation of $1000 imposed by s 84(1)(a) of the Strata Titles Act 1985 (WA) (ST Act). The orders concerned were expressed as follows:
"(5) Strata company to pay compensation to the applicants in the amount of $67 887 for invalidly authorised and/or expended special levies raised from 4th May 2000 to 11th December 2000 inclusive.
(6) Strata company to reimburse the applicants in the amount of $2057 for strata company funds expended without lawful authority.
(7) Strata company to compensate the applicants in the amount of $1093, for all strata company expenditures related to the sale of common property bays.
…
(9) Strata company to pay the applicants $2535 for their share of the proceeds from the sale of common property carbays.
(10) Strata company to compensate the applicants in the amount of $3879 for Swanline offer of $90 000 that was prevented from being decided by a vote of the strata company."
11 On 19 October 2005, the applicants filed a certificate of title in respect of Lot 20 on strata plan 24594 together with "revised orders". The certificate of title reflects that Christine Margaret Wenzel holds a three-quarter share and Michael John Nelson a one-quarter share as tenants-in-common in Lot 20. Order 5 in the revised orders was broken
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- down into 56 separate orders, in various amounts, but each less than $1000. Order 6 was broken down into three separate orders, O 7 into two separate orders, O 9 into five separate orders and O 10 into three separate orders, each in various amounts but now under the $1000 limit.
12 Further correspondence then ensued between the Registrar for the Strata Titles Referee and the applicants in which the Strata Titles Referee's concern as to a range of matters was raised, including the manner in which the claims had been reformulated on the basis that "the Referee may order payment of, in an application, to a maximum amount of $1000". The applicants pointed out that s 84 of the ST Act does not in those terms limit the compensation which may be ordered "per application". Although the Registrar acknowledged that the limit of $1000 is expressed as a limit on the amount that may be specified in an order, he conveyed that the Strata Titles Referee was not satisfied that the claims could be broken down in the manner in which the applicants had done. This was conveyed by letter dated 23 December 2004. In the same letter, the Registrar advised that the Strata Titles Referee would not be able to deal with the matter prior to the Office of the Strata Titles Referee being abolished and accordingly, the applicants were requested to respond to the State Administrative Tribunal (SAT or the Tribunal).
13 The application was transferred to the Tribunal with effect from 1 January 2005 pursuant to the transitional provisions of the State Administrative Tribunal Act 2004 (WA) (SAT Act). By reg 28 of the State Administrative Tribunal Regulations 2004 (WA), the matter is taken to have commenced with the Tribunal and the Tribunal may have regard to any record of the former adjudicator, which I have done.
14 On 12 April 2005, under cover of a letter dated 5 April 2005, the applicants filed a fresh application under s 83(1) and advised that they wished to withdraw O 4 – O 16 and O 20 – O 21 in relation to application ST 2004/000108. SAT has treated the further application as being supplementary to the original application so that the matter has been dealt with under the same file number.
15 On 21 April 2005, the respondent filed a comprehensive response to the application. The response outlined the history of disputation between the applicants and the respondent. Based on that history, reference to which will be made further below, the respondent contended that the application was not substantiated or supported by any evidence, was based on opinion, was inaccurate and vexatious and raised issues already
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- addressed in previous determinations by the Strata Titles Referee and the District Court.
16 During the period prior to 31 May 2005, SAT received submissions from some 14 owners of lots of which two supported the application and 12 were opposed to it. The submissions raised matters relevant to the substantive application but have no bearing upon the respondent's complaint that the application is vexatious.
17 As a result of the various amendments to the relief being sought, the matter had become confused, and at a special appointment on 1 August 2005 to attempt to clarify the matter, directions were issued requiring the applicants to file with the Tribunal and serve on the respondent an indexed and paginated bundle of documents containing the application in its final form and all supporting documents. The respondent was then required to file a Statement of Issues, Facts and Contentions relating to each aspect of the application which the respondent contends constitutes an abuse of process or which demonstrated that the application as a whole was vexatious or an abuse of process.
18 The time frame for compliance with these orders was subsequently extended because the parties were attending a mediation hearing in the Supreme Court which it was hoped would result in an overall settlement of all matters in issue between the parties. Unfortunately, a settlement was not achieved.
19 The applicants filed the application in its final form together with supporting documents on 1 December 2005. Under this application, all references to interim relief was deleted and 73 orders were sought under s 83 of the ST Act. Orders 2.1 to 2.56 contain the 56 claims previously referred to under O 5, and O 3, O 4, O 6 and O 7 contain the claims previously contained in separate orders under par 6, par 7, par 9 and par 10 of the original application, as amended. On 6 January 2006, the respondent filed its statement of issues facts and contentions together with supporting documents, opposing the application and identifying the basis upon which it contended that the application as a whole is vexatious and the extent to which it overlapped or duplicated the previous proceedings. The applicants filed a further document in the nature of a reply on 3 February 2006.
Applicable principles
20 Sections 47 and 49 of the SAT Act provides as follows:
(Page 9)
- "47. Unjustified proceedings
(1) This section applies if the Tribunal believes that a proceeding –
(a) is frivolous, vexatious, misconceived or lacking in substance;
(b) is being used for an improper purpose; or
(c) is otherwise an abuse of process.
(2) If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3) The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4) The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
…
49. Restriction on new application
If a proceeding is dismissed or struck out under section 46, 47 or 48, another proceeding of the same kind in relation to the same matter cannot be commenced before the Tribunal without the leave of a judicial member."
(Page 10)
22 It is prima facie an abuse of process to commence fresh proceedings which are for substantially the same relief, or based on the same grounds as proceedings which have been previously dismissed: Seaman, P Civil Procedure Western Australia Butterworths, Adelaide 1990 at par 20.19.16A.
23 Further, it is an accepted principle that "where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not ('except under special circumstances') permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case": see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.
24 Subsection 84(1) of the ST Act provides as follows:
"84. Further powers of referee
(1) The State Administrative Tribunal is empowered to make an order that –
(a) requires a party to the dispute before it to pay money not exceeding the sum of $1 000 to a person specified in the order;
(b) requires a party to the dispute before it to do, or refrain from doing, some specified act to which the application relates;
(c) strikes out for want of jurisdiction the dispute before it."
(Page 11)
26 There is on the face of it, nothing to prevent a party including within one application a number of disputes. If more than one claim is made in an application, in relation to which the applicant seeks by way of settlement of the dispute a sum of compensation, each claim must be identifiable as a separate dispute, unless the total compensation paid in respect of all claims falls under the statutory limit of $1000. Further, each dispute must be one which gives rise to an entitlement to relief under the ST Act. This must follow if the purpose of the application is for the Tribunal to make an order in settlement of the dispute because the remedies available to the Tribunal are limited to those created by the ST Act and to which the applicant must demonstrate that he or she is entitled.
27 "The dispute" may be regarded as analogous in meaning to "cause of action" as that phrase is used in the context of litigation. In that context a cause of action has been defined as meaning the fact or combination of facts which give rise to a right to sue: Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at 245; Ronald Colin Dye & Ors v The Griffin Coal Mining Co Pty Ltd & Anor [1998] WASCA 184 (23 July 1998). So within s 84 of the SAT Act "the dispute" encompasses all of the elements which must be established to entitle a party to the relief claimed.
28 In considering an application to dismiss proceedings under s 47 of the SAT Act prior to a final hearing, the Tribunal is conscious that it should be slow to close the door on a party and that great care must be exercised to ensure that an applicant is not improperly deprived of his opportunity for the trial of his case by the appointed Tribunal: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130. With due regard to that principle, the Tribunal is in a good position to assess whether a claim is arguably open because of the considerable documentation, provided by the parties, on which the claims are based.
Other relevant proceedings
29 In support of its application to have the proceedings dismissed, the respondent has drawn the Tribunal's attention to the long history of disputation between the parties. This resulted in an initial application to the Strata Titles Referee in file no ST/2002 – 000077. The applicants were successful in part in those proceedings. The proceedings were directed at ensuring that the respondent provided copies of certain records and provided information to owners concerning particular dealings with an adjoining property developer. As it transpired, the respondent had
(Page 12)
- taken steps which appear to have substantially complied with the order relating to the adjoining property developer, prior to the issue of the Strata Titles Referee's order. There is some issue as to whether or not that constituted compliance with the order.
30 The applicants commenced further proceedings before the Strata Titles Referee in matter no ST/2003 – 000061. The applicants were again partly successful in that they obtained orders to the effect that a particular by-law relating to the maintenance of windows was invalid and requiring the respondent to address the maintenance of the windows of the applicants' Lot 20. But, the Strata Titles Referee declined to make orders in the vast majority of matters in relation to which the applicants sought relief. The Strata Titles Referee found that some of the orders were vague; others were verbose or not in the terms of an order that could be made, and other orders were repetitive. Some of the grounds put forward were held to lack substantiation. The bulk of the application was therefore dismissed.
31 An appeal was then commenced by the applicants in the District Court in which it was sought to appeal the adverse findings of the Strata Titles Referee. Prior to the hearing, a meeting occurred as a result of which the respondent contended that the applicants had compromised their rights in respect of the appeal. The District Court heard evidence and in a decision by Deane DCJ handed down on 18 January 2005 in Nelson & Anor v Owners of "Mt Eliza Apartments" – Strata Plan 24594 [2005] WADC 5, it was held that a compromise had indeed been reached.
32 The applicants commenced proceedings in the Supreme Court appealing against the District Court decision. Those proceedings have not yet been finalised.
Consideration of the applicants' claims
33 Attached as annexure A, is a copy of the summary of orders as filed by the applicants on 1 December 2005. For the sake of brevity I will refer to each order not by the full summary but by reference simply to the order number or numbers. It is relevant to some of those claims to understand the applicants' standing and the extent of any entitlement which they may have. It is common to the claims that the applicants allege that, because of the conduct or decisions of the council of the respondent, unnecessary costs were incurred, or savings could have been effected, and that translates in their being entitled to the particular sums claimed.
(Page 13)
34 As already stated above, the applicant, Christine Margaret Wenzel, holds a three-quarter share and the applicant, Michael John Nelson, holds a one-quarter share as tenants-in-common in Lot 20 on strata plan 24594. The parcel contains 25 residential lots. A strata plan of re-subdivision was lodged with the Department of Land Administration, as it then was, on 28 May 2001 soon to which Lots 1, 4, 14 and 24 were to be cancelled, some changes were to be made to common property and new Lots 26, 27, 28 and 29 were to be created. At the time of the hearings before the Strata Titles Referee, that plan of re-subdivision had not been registered. Registration occurred on 17 May 2004 and in accordance with the amended schedule of unit entitlements, Lot 20 has an allocated entitlement of 195 units of an aggregate of 5000 units in respect of all lots. It is that proportionate share which represents the amounts claimed by the applicants in relation to each claim.
Claims 2.1 to 2.56
35 As previously stated, orders 2.1 – 2.56 were previously a single claim for which, under O 5, the applicants sought compensation in an amount of $67 887. The grounds in support of that claim stated that the amount was claimed "for invalidly authorised and/or expended special levies raised from 4th May 2000 to 11th December inclusive".
36 In the current application, there are no grounds stated to justify any of the orders from 2.1 to 2.55. In relation to O 2.56, compensation is claimed in an amount of $811 (for interest period January 2001 - December 2004 for invalidly authorised and/or expended special levies raised from the Extraordinary General Meeting (EGM) of 11 December 2000). On the other hand, the summary of orders sought shows that claims are advanced in respect of levies raised during the EGM of 4 May 2000, together with related interest claimed (O 2.1 – O 2.25). Other claims are advanced in respect of levies raised at the EGM of 21 June 2000 (O 2.26 – O 2.36). Similar claims are made in respect of the Annual General Meeting (AGM) held on 20 September 2000 (O 2.38 – O 2.52).
37 There appears to be little change in the motivation set out in the grounds supporting the original O 5 and that which is set out in the current application in respect of O 2.56.
38 The application for relief in respect of O 2.1 – O 2.56 is therefore vague to such a degree that it would be open to strike out the application on the grounds that it is lacking in substance. If that course were to be
(Page 14)
- followed, it would be appropriate to grant leave to amend in order to cure the defects and so that the application could proceed on a proper basis.
39 The respondent's criticism however goes further to suggest that the claims should be dismissed as being vexatious "because it contains no reasonable [sic] grounds to support ANY of the requested orders". It is necessary to identify the elements which must be shown to enable the Tribunal to grant relief.
40 In order to be entitled to a remedy in respect of the alleged improper authorisation of levies, the applicants would need to show:
(a) that as a result of some procedural defect the levy was not properly authorised;
(b) that the respondent raised the levy and that, by reason of a mistake of fact or law, or under a reservation of rights, it was paid.
41 If the applicants had acted promptly, the above elements would be all that would be required to be established, because they would then be entitled to claim a repayment to them of the levy. However, the last meeting in respect of which the authority to raise levies is sought to be impugned was in December 2000. The applicants were aware of the building operations which were taking place, as is apparent from the documentation filed by both parties. In these circumstances, I consider that, before being entitled to relief, it would be necessary for them to show as a further element:
(c) that the applicants suffered a loss as a result of the use to which the levies were put.
42 The applicants' argument for asserting that the levies were not properly authorised is that "the Act's requirements for approval were not satisfied". They assert that, although some funds were budgeted at the AGM of 25 September 2000, there was no presentation of specific proposals for dissent, such as would allow the proposals to be deemed approved, and no alternative quotations were ever presented to the proprietors for any of the works.
43 The above appears to be a reference to the mechanism provided under subsection 47(3) of the ST Act whereby expenditure may be deemed to be approved if notice in writing of the purpose and the amount of the proposed expenditure has been given to the proprietors and first
(Page 15)
- mortgagees and less than the requisite number of them have objected thereto. It also appears to be a reference to the process under subsection 47(7) whereby, if expenditure has not been authorised by or under the section, it is necessary to submit the proposal to incur expenditure to a general meeting and submit at least two tenders to that meeting with the proposal.
44 The above contentions are, in themselves, embarrassing because they are inconsistent with the summary of orders, annexure A, which in relation to claims 2.1 2.56 reflects that the levies were invalidly authorised at either an annual general meeting or extraordinary general meeting of the respondent. There is no evidence put forward to challenge the validity of the process by which such meetings were called or the procedures followed at the meetings.
45 The respondent has provided copies of the minutes of all of the meetings the subject of orders 2.1 2.56, together with the notices convening the notices and supporting documents which on their face appear to reflect compliance with the SAT Act. In the reply filed on 3 February 2006, the applicants referred to the respondent's assertion that the levies had been properly authorised and references to the attached records of the meetings by merely saying:
"The respondent's claim to ' … demonstrate that the levies were validly authorised' is purely asserted. There is no relation of such procedures as were actually followed to the requirements of the Act for authorising what was actually done, that would show compliance."
46 This shows a complete misunderstanding of where the onus lies. The applicants have asserted that the levies were not properly authorised and it is for them to make out their case.
47 It follows that, in my view, the first element of the basis upon which the applicants must show a right to a remedy is not established. While it is implicit from the application as presented that the applicants paid the levies in question, the circumstances of that payment are not established and there is also no evidence that the applicants suffered any loss as a result of the expenditure of the levies. The monies had been expended on common property of which the applicants are part owners as tenants-in-common proportionate to their unit entitlement.
(Page 16)
48 There is a second basis upon which the applicants' case for these orders appears to be advanced, and that is that the expenditure was not in accordance with the authority granted.
49 The elements necessary to establish the right to a remedy in respect of this claim are as follows:
a) That the authority (which is disputed above) entitled particular works to be carried out.
b) That the works were in some not insignificant respect different.
c) That the applicants have consequently suffered a loss.
50 It would not be difficult to imply into an authority to carry out major building works that a council has an implied authority to carry out incidental or minor variations. It would otherwise almost be impossible to carry out any major building works. Even if the respondent deviated in a more significant respect, a difficulty that the applicants face is that the majority of owners have, by their conduct, obviously ratified any deviations. If that was not the case, it would have been a simple matter to requisition a general meeting and direct the council to take a different course. In any event, the applicants have not established any loss.
51 Notwithstanding the above findings, I do not consider that the claims can be said to have been advanced vexatiously. I prefer to find that the above claims are misconceived for the reasons given above. In addition, it appears that some claims are duplicated, namely O 2.6 and O 2.10, O 2.7 and O 2.11, and O 2.9 and O 2.12, and it is an abuse of process to proceed with duplicated claims.
52 On the above bases, the claims giving rise to O 2.1 – O 2.56 must be dismissed.
53 Although it is not necessary to do so, in view of the above findings, I address briefly also the basis upon which what was one claim was split into 56 separate orders. I note the following. The levy raised at the May 2000 EGM was to be paid in two tranches on 1 June 2000 and 1 September 2000. Once payment of each tranche was made, all claims flowing therefrom must be regarded as part of a single dispute. It follows that any claims for alleged lack of authority in raising the levy in respect of the May 2000 meeting cannot be broken down into more than two claims in respect of the levy paid on or about 1 June 2000 and
(Page 17)
- 1 September 2000 respectively. The attempt to split the claims as the applicants have done in relation to claims 2.1 – 2.25 constitutes an abuse of process. On the documents, it is not clear how all the levies raised and implicitly paid relate to the remaining claims, which are, therefore, embarrassing and would have probably resulted in them being categorised as a fewer number of "disputes" than the claims presently made, but it is not established that they constitute an abuse of process.
Order 3.1
a) That unauthorised expenditure for legal fees was incurred.
b) That the applicants have suffered loss as a result.
55 As part of the applicants' claim, an authority to incur legal costs was granted on the basis that the respondent would "engage a lawyer to guide us through the District Court appeal process" and "apply to the Strata Titles Referee to declare the owners of Unit 20 to be vexatious". The applicants complained that the council of the respondent did not spend the money as it had proposed above but instead "underhandedly brought a new action seeking to have our appeal dismissed, submitting false affidavits to that end, claiming we had reached a binding settlement agreement for withdrawal of our appeal".
56 Firstly, I consider the applicants place a strained interpretation on the authority to engage a lawyer "to guide us through the District Court appeal process". I consider that authority would encompass receiving advice to have the appeal dismissed because a compromise was alleged to have been reached. Further, as it transpires, the District Court, after considering the affidavits and hearing oral evidence, upheld the respondent. It is that District Court finding which has given rise to the Supreme Court proceedings to which reference has already been made.
57 The applicants also state that legal costs were incurred at times when there was no budget provision, or an inadequate provision for such costs. Even if that is the case, there is nothing to suggest that the respondent and its members did not receive value for the costs incurred, or indeed, that the costs were not necessarily incurred. It is obvious that the majority of owners by their conduct have ratified the steps taken by the council of the respondent. No loss is established.
(Page 18)
58 I consider that the relief sought under O 3.1 is misconceived and should be dismissed on that basis.
Order 3.2
59 The applicants seek to recover a share of a special levy which was not notified to a purchaser of a unit at settlement, resulting in the purchaser denying responsibility for it. The applicants also seek to recover a share of legal fees incurred in excess of the budgeted amount. The total over expenditure on legal costs was $409 so that the applicants' share of this is miniscule, being a 195/5000 share, namely $15.95. This aspect of the claim should be struck out on the basis that it is frivolous. In any event, there is nothing to suggest that any legal costs incurred were not incurred in good faith for the benefit of the respondent and its members as a whole. As owners have taken no issue, they must be assumed by their conduct to have ratified the expenditure.
60 In relation to a decision of the council not to pursue a purchaser for a special levy, that was a management decision, which binds the respondent and its members. The applicants have no right as against the respondent strata company to recover any loss. For the above reasons, this order should be dismissed as being misconceived and, in part, frivolous.
Order 3.3
61 The applicants assert that expenditure incurred in equipping the caretaker's unit and in certain improvements and maintenance of common property was not authorised.
62 In the context of a strata company which, during the years in question was involved in expenditures of between $1 000 000 and $2 000 000, the amounts raised by the applicants are relatively insignificant. But, in any event, even unauthorised expenditure, within the ostensible authority of a council, will bind its members. The applicants have no right of recovery as against the respondent. Further, to the extent that the expenditure was in relation to improvements to common property, the applicants have an undivided share therein and have not demonstrated any loss.
63 I consider that the claim giving rise to the claim set out in O 3.3 must be struck out as being misconceived.
Orders 4.1 to 10 inclusive
64 All of the claims giving rise to the above orders suffer from a common defect. They are all based upon decisions made by, or the
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- conduct of, the council of the respondent. The actions of the council, in relation to matters not between the applicants and the respondent cannot give rise to a claim against the respondent. When the council of the strata company takes action or makes decisions in relation to third parties, that binds the strata company and its members.
65 On that basis alone, the claims all fall to be struck out as being misconceived but some of the claims require additional consideration.
Orders 7.1 to 7.4
66 The applicants' claim assumes that if the council of the respondent had dealt with the matter differently, it would have resulted in an agreement being reached on the terms offered by Swanline Developments.
67 If there was a valid claim which could be advanced, an assessment would have to be made of the contingency of an agreement being concluded as alleged. The minutes of the EGM held on 19 November 2002 reflects a marked philosophical difference between the position of the applicants and that of the majority of owners. The majority of owners were not interested in a transaction in which consideration was received for the removal of trees unless prospective purchasers of an interest in the adjoining land were informed that there was no restriction on replanting. Swanline Developments declined to proceed on that basis. The majority of owners considered that the respondent would be exposed to the potential of action for misrepresentation. The applicants have produced no evidence which would suggest that a different result may have been achieved if the council of the respondent had acted as the applicants contend it should have acted. These claims, therefore, ought to be struck out on the additional ground that they are lacking in substance.
Order 9
68 This claim proceeds on the basis that Mr Nelson was authorised by the council to negotiate a reduction in wages with the cleaner.
69 The evidence provided by the applicants establishes no more than that Mr Nelson was authorised to undertake an investigation and to report to the council. Ultimately, the council took a very different philosophical view to the merits of negotiating a reduction in wages.
70 The evidence discloses Mr Nelson threatened to join the caretaker in defamation proceedings against other unspecified persons.
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71 As the applicants' own evidence establishes, the claim is patently without merit and it smacks of having been raised for ulterior purposes. It is apparent from the documentation that relations became heated over this issue, and indeed, many other issues. On the applicants' own evidence, it is obvious no valid claim for compensation exists and I infer that the claim is raised to harass or annoy. In any event, it falls within the definition of vexatious proceedings because the claim is pursued without reasonable grounds. I consider that this claim falls to be struck out on the grounds that it is vexatious and an abuse of process.
Order 10
72 The proceedings before the Strata Titles Referee in matter ST/2003 000061 reflect the degree in which the applicants have attempted to control the management of the respondent. There is a history to this which is reflected in the application, namely that the council of the respondent at one time refused to work with Mr Nelson, who was then also a council member. This resulted in an election being held in which Mr Nelson was not re-elected.
73 Ultimately, if there is a sufficient level of dissatisfaction with the management of a council, the best forum in which that should be addressed is a general meeting of members.
74 This particular claim reveals a deep underlying concern of the applicants which they expressed in these terms:
"[T]his continues a habit of the council, to advance vague or deceptive agenda in budgets, and if they provide any detail, it is generally after the item has been purported to have been approved."
75 If it is not acceptable to members for the council to proceed in this way, it should be addressed in a general meeting. If members in a general meeting are prepared to provide a council with a broad discretion, then it is not open to members in the position of the applicants to challenge the authority on the basis that it is broader than they might wish. It can be well imagined that in many circumstances, it is necessary to provide a broad authorisation to facilitate proper management but it is for members to determine the extent to which they wish to direct the council.
76 The amount expended was on the improvement of common property. The applicants own an undivided share of that common property and have not demonstrated that they have suffered any loss.
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77 This claim falls to be dismissed on the basis that it is misconceived.
78 Finally, in fairness to the submissions advanced on behalf of the respondent, I address the complaint that various claims had been raised previously and had been determined in the proceedings before the Strata Titles Referee in matter ST/2003 000061. One of those issues related to the Japanese garden – O 2.44. In those proceedings the applicants sought an order for the reinstatement of the Japanese garden by restoring the landscaper's original concept as installed, primarily by removing false boulders. That claim was dismissed by the Strata Titles Referee as being frivolous, vexatious, misconceived or lacking in substance.
79 Strictly, the claim previously advanced was a different claim but it was open to the applicants to assert as an alternative to that claim, that if it was refused, the applicants be entitled to compensation as claimed in these proceedings. As such, the claim should strictly be regarded as being estopped in accordance with the Port of Melbourne Authority v Anshun Pty Ltdprinciples referred to above.
80 In the context of the legislation governing the Tribunal, I consider that proceeding with such a claim can constitute an abuse of process, but for the reasons given further below, I would not be prepared to dismiss this claim on that basis.
81 The respondent made a similar submission in relation to the Swanline Developments claim (O 7.1 O 7.4 above). As it is apparent that the orders sought before the Strata Title Referee, and which were dismissed on the same basis as the Japanese garden claim, were aimed at ensuring that the strata company took additional steps to address the Swanline Developments offer, it would not have been appropriate for the applicants to claim in the alternative the relief sought in these proceedings. The relief sought in these proceedings was based on the final outcome of the Swanline Developments negotiation. I do not consider that these claims are open to criticism on this basis.
82 The Strata Titles Referee's decision in ST/2003 – 000061 was the subject of appeal to the District Court, and the decision of that court finding that the appeal had been compromised has been appealed to the Supreme Court. If the applicants are successful in the Supreme Court proceedings, the appeal to the District Court would have to be heard on its merits. If the applicants are again successful, the claims before the Strata Titles Referee would have to be determined by the Tribunal and it would be open to the applicants to consolidate any claims advanced in the
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- alternative, or to amend the original application – but for the findings on other grounds that the claims are to be dismissed. It is not appropriate in those circumstances to dismiss any of the claims which the respondent contends were the subject of the above proceedings before the Strata Titles Referee on that particular ground.
Order
83 For the above reasons, the Tribunal orders:
1. The proceedings are dismissed pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA).
- I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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Annexure A
Order No 2.1: Strata company to pay compensation to the applicants in the amount of $897, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000, for upgrade to balustrade – roof.
Order No 2.2: Strata company to pay compensation to the applicants in the amount of $936, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000 – upgrade surface – roof.
Order No 2.3: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000- work on leaks – roof
Order No 2.4: Strata company to pay compensation to the applicants in the amount of $819, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000- replace windows – unit 25
Order No 2.5: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000- upgrade to roof.
Order No 2.6: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000- work on leaks – upper carpark – Y/E 30/06/00
Order No 2.7: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000- work on leaks – upper carpark – Y/E 30/06/01
Order No 2.8: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000- rebituminise – upper carpark
Order No 2.9: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000- upgrade plumbing – upper carpark
Order No 2.10: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000 – work on leaks – Y/E 30/06/00 – upper carpark.
Order No 2.11: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000 – work on leaks – Y/E 30/06/01 – upper carpark.
(Page 24)
Order No 2.12: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000 – upgrade plumbing – upper carpark
Order No 2.13: Strata company to pay compensation to the applicants in the amount of $936, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000 – legislation compliance and duty of care costs – year ended 30/06/00.
Order No 2.14: Strata company to pay compensation to the applicants in the amount of $858, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000 – legislation compliance and duty of care costs – year ended 30/06/01.
Order No 2.15: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000 – professional services Y/E 30/06/00.
Order No 2.16: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000 – professional services Y/E 30/06/01.
Order No 2.17: Strata company to pay compensation to the applicants in the amount of $936, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000 – contingency year ended 30/06/00.
Order No 2.18: Strata company to pay compensation to the applicants in the amount of $858, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000 – contingency year ended 30/06/01.
Order No 2.19: Strata company to pay compensation to the applicants in the amount of $780, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000 – contingency year ended 30/06/02.
Order No 2.20: Strata company to pay compensation to the applicants in the amount of $195, for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000 – develop a master landscape plan with 10 year maintenance programme [sic] and budget.
Order No 2.21: Strata company to pay compensation to the applicants in the amount of $549, for interest period May 2000 – December 2000 for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000.
Order No 2.22: Strata company to pay compensation to the applicants in the amount of $942, for interest period January 2001 – December 2001 for invalidly
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authorised and/or expended special levies raised from the EGM of 4th May 2000.
Order No 2.23: Strata company to pay compensation to the applicants in the amount of $942, for interest period January 2002 – December 2002 for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000.
Order No 2.24: Strata company to pay compensation to the applicants in the amount of $942, for interest period January 2003 – December 2003 for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000.
Order No 2.25: Strata company to pay compensation to the applicants in the amount of $942, for interest period January 2004 – December 2004 for invalidly authorised and/or expended special levies raised from the EGM of 4th May 2000.
Order No 2.26: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 21st June 2000 – upgrade backbone system – airconditioner.
Order No 2.27: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 21st June 2000 – upgrade cooling towers – airconditioner.
Order No 2.28: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 21st June 2000 – upgrade pumps – airconditioner.
Order No 2.29: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 21st June 2000 – upgrade electrical control gear – airconditioner.
Order No 2.30: Strata company to pay compensation to the appellants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 21st June 2000 – remove old units – airconditioner.
Order No 2.31: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 21st June 2000 – rebalancing air outlets – airconditioner.
Order No 2.32: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 21st June 2000 – upgrade closure panels – airconditioner.
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Order No 2.33: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 21st June 2000 – professional costs – airconditioner.
Order No 2.34: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM of 21st June 2000 – consultants – airconditioner.
Order No 2.35: Strata company to pay compensation to the applicants in the amount of $691, for interest period June 2000 – December 2001 for invalidly authorised and/or expended special levies raised from the EGM of 21st June 2000.
Order No 2.36: Strata company to pay compensation to the applicants in the amount of $922, for interest period January 2002 – December 2003 for invalidly authorised and/or expended special levies raised from the EGM of 21st June 2000.
Order No 2.37: Strata company to pay compensation to the applicants in the amount of $461, for interest period January 2004 – December 2004 for invalidly authorised and/or expended special levies raised from the EGM of 21 June 2000.
Order No 2.38: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the AGM 25th September 2000 – internal painting – stairs
Order No 2.39: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the AGM 25th September 2000 – internal painting – walls and doors
Order No 2.40: Strata company to pay compensation to the applicants in the amount of $858, for invalidly authorised and/or expended special levies raised from the AGM 25th September 2000 – standardise individual lobbies – interior designers and removal of existing coverings.
Order No 2.41: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the AGM 25th September 2000 – standardise individual lobbies – tiling front lobbies
Order No 2.42: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the AGM 25th September 2000 – standardise individual lobbies – tiling rear lobbies
Order No 2.43: Strata company to pay compensation to the applicants in the amount of $585, for invalidly authorised and/or expended special levies raised from the AGM 25th September 2000 – landscaping upgrade.
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Order No 2.44: Strata company to pay compensation to the applicants in the amount of $585, for invalidly authorised and/or expended special levies raised from the AGM 25th September 2000 – Japanese garden
Order No 2.45: Strata company to pay compensation to the applicants in the amount of $858, for invalidly authorised and/or expended special levies raised from the AGM 25th September 2000 – river quadrant upgrade, canopy upgrade, roof furniture and store, building illumination upgrade.
Order No 2.46: Strata company to pay compensation to the applicants in the amount of $507, for invalidly authorised and/or expended special levies raised from the AGM 25th September 2000 – upgrade front gate and lights.
Order No 2.47: Strata company to pay compensation to the applicants in the amount of $507, for invalidly authorised and/or expended special levies raised from the AGM 25th September 2000 – professional fees
Order No 2.48: Strata company to pay compensation to the applicants in the amount of $585, for invalidly authorised and/or expended special levies raised from the AGM 25th September 2000 – contingency
Order No 2.49: Strata company to pay compensation to the applicants in the amount of $550, for interest period September 2000 – December 2001 for invalidly authorised and/or expended special levies raised from the AGM of 25th September 2000.
Order No 2.50: Strata company to pay compensation to the applicants in the amount of $880, for interest period January 2002 – December 2003 for invalidly authorised and/or expended special levies raised from the EGM of 25th September 2000.
Order No 2.51: Strata company to pay compensation to the applicants in the amount of $440, for interest period January 2004 – December 2004 for invalidly authorised and/or expended special levies raised from the EGM of 25th September 2000.
Order No 2.52: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM 11th December 2000 – upgrade to boundary walls
Order No 2.53: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM 11th December 2000 – upgrade to balustrade – carpark
Order No 2.54: Strata company to pay compensation to the applicants in the amount of $975, for invalidly authorised and/or expended special levies raised from the EGM 11th December 2000 – upgrade to power outlets on each floor and upgrade to water-filtering system.
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Order No 2.55: Strata company to pay compensation to the applicants in the amount of $936, for invalidly authorised and/or expended special levies raised from the EGM 11th December 2000 – contract labour.
Order No 2.56: Strata company to pay compensation to the applicants in the amount of $811, for interest period January 2001 – December 2004 for invalidly authorised and/or expended special levies raised from the EGM of 11th December 2000.
Order No 3.1: Strata company to reimburse the applicants in the amount of $917 for strata company funds expended without lawful authority – legal fees.
Order No 3.2: Strata company to reimburse the applicants in the amount of $352 for strata company funds expended without lawful authority – compromise settlement.
Order No 3.3: Strata company to reimburse the applicants in the amount of $821 for strata company funds expended without lawful authority – upgrades.
Order No 4.1: Strata company to compensate the applicants in the amount of $975, for all strata company expenditures related to the sale of common property car bays.
Order No 4.2: Strata company to compensate the applicants in the amount of $118, for interest on all strata company expenditures related to the sale of common property car bays.
Order No 5: Strata company to compensate the applicants in the amount of $946 for rental income foregone on common property car bays B50, B51, B52, B54 and B60.
Order No 6.1: Strata company to pay the applicants $487 for their share of proceeds from the sale of common property car bay No 50.
Order No 6.2: Strata company to pay the applicants $487 for their share of proceeds from the sale of common property car bay No 51.
Order No 6.3: Strata company to pay the applicants $488 for their share of proceeds from the sale of common property car bay No 54.
Order No 6.4: Strata company to pay the applicants $488 for their share of proceeds from the sale of common property car bay No 60.
Order No 6.5: Strata company to pay the applicants $605 for their share of proceeds from the sale of common property car bay No 52.
Order No 7.1: Strata company to compensate MJ Nelson co-proprietor of unit 20, in the amount $1000, for Swanline cash component ($70 000) of offer of $90 000, that was prevented from being decided by a vote of the strata company.
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Order No 7.2: Strata company to compensate CM Wenzel, co-proprietor of unit 20, in the amount $1000, for Swanline cash component ($70 000) of offer of $90 000, that was prevented from being decided by a vote of the strata company.
Order No 7.3: Strata company to compensate the applicants in the amount $780, for Swanline landscaping component ($20 000) of offer of $90 000, that was prevented from being decided by a vote of the strata company.
Order No 7.4: Strata company to compensate the applicants in the amount $369, for interest foregone on the offer from Swanline of total value $90 000, that was prevented from being decided by a vote of the strata company.
Order No 9: Strata company to compensate the applicants in the amount of $234 for the cleaner's offered wage decrease that was refused
Order No 10: Strata company to compensate applicants for their share of costs to install new street front signage, as proposed at the AGM of 5th August 2004 – "entry signage, lighting and rendering $5000".
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