| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : OWNERS OF ESPLANADE APARTMENTS STRATA PLAN 48560 and STEVE'SNEDLANDS PARK NOMINEES PTY LTD [2009] WASAT 97 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : 12 MAY 2009 DELIVERED : 13 MAY 2009 FILE NO/S : CC 630 of 2009 BETWEEN : OWNERS OF ESPLANADE APARTMENTS STRATA PLAN 48560 Applicant
AND
STEVE'SNEDLANDS PARK NOMINEES PTY LTD
First Respondent
BROOKFIELD MULTIPLEX DEVELOPMENTS PTY LTD
Second Respondent
MULTIPLEX (NEDLANDS PARK HOTEL) PTY LTD
Third Respondent
Catchwords: Strata title - Interim relief - Easement - Lodgement and registration of easement - Limitation on the Tribunal to only grant relief that is within its powers under
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the enabling statute - Easement deals with rights in land - Easement must not be equated to a bylaw which deals with usage of common property by owners of a strata scheme - Tribunal does not have jurisdiction to make orders in regard to an easement - Joining the Registrar of Titles to the proceedings Legislation: State Administrative Tribunal Act 2004 (WA), s 38
Strata Titles Act 1985 (WA), s 20, s 20(5), s 82, s 82(2)(a), s 93, s 93(4), s 95, s 115, s 121, Div 3 Result: The application to interim relief dismissed Category: B
Representation: Counsel:
Applicant : Mr AJ Goldfinch
First Respondent : Mr JCW Skinner
Second Respondent : N/A
Third Respondent : N/A
Solicitors:
Applicant : Stables Scott
First Respondent : Jackson McDonald
Second Respondent : N/A
Third Respondent : N/A
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision 1 The applicant sought interim relief to stop the Registrar of Titles to register an easement that would give to non-lot owners the right to use common property facilities such as a swimming pool and gymnasium of the strata scheme. The applicant contended that the Tribunal had the power to grant such interim relief and further sought an order for the Registrar of Titles to be joined to the proceedings. The applicant was concerned that if the easement is registered, it would become indefeasible. 2 The first respondent attended the hearing via telephone but indicated that it had not lodged the easement and therefore had little to contribute to the proceedings. 3 In regard to the joining of the Registrar of Titles to the proceedings, the Tribunal found that although it had the power to direct the Registrar to do certain things, the power is limited by the provisions of the Strata Titles Act 1985 (WA). There is nothing in the Strata Titles Act 1985 (WA) that suggests that the Registrar can be joined to proceedings. The Tribunal may direct the Registrar to register a by-law but that does not equate to joining the Registrar. 4 In regard to stopping the Registrar from registering an easement, the Tribunal found that there is no reference in Div 3 of the Strata Titles Act 1985 (WA) which sets out the powers of the Tribunal to make orders in regard to easements. An overview of the powers of the Tribunal shows that Parliament clearly had in mind to grant it the power to make determinations in regard to by-laws - refer, for example, to s 93 and s 95 of the Strata Titles Act 1985 (WA). But nowhere is there any reference to the Tribunal making determinations in regard to an easement. The only conclusion is that Parliament had not intended for the Tribunal to make orders - be it for final or interim relief - in regard to easements. 5 An easement gives rise to a right in land and that falls within the jurisdiction of the Supreme Court and not the Tribunal. 6 The application for interim relief was therefore dismissed.
Background 7 The Tribunal gave oral reasons for decision in these proceedings. The following is an edited version thereof. (Page 4)
8 An urgent application for interim relief was filed by the applicant on 8 May 2009. The matter was set down for hearing on 11 May 2009. The applicant and first respondent were represented. The Tribunal considered the written submissions of the applicant and also heard oral submissions from the applicant and first respondent. The Tribunal adjourned proceedings for it to consider the issues.
Application 9 The application for interim relief is brought pursuant to s 82 of the Strata Titles Act 1985 (WA) (ST Act). The applicant seeks an order to prevent the Registrar of Titles to register an easement (K934789) that has been submitted to it. The easement, if registered, would give certain rights to persons who are not lot owners of the strata scheme to gain access to and to use common property facilities of the scheme - such as the swimming pool and gymnasium. 10 The urgency of the matter is caused by the concern of the applicant that if the easement is registered, it would become indefeasible. 11 The applicant is therefore seeking orders to: Consideration 12 Section 82 of the ST Act enables the Tribunal to grant interim relief if it is satisfied that on reasonable grounds by reason of urgent circumstances such relief should be granted. 13 The matters upon which the Tribunal can grant interim relief are limited to those on which the Tribunal can grant final relief. It is therefore incumbent on the applicant to show that the Tribunal has power to: 14 An easement is 'a right enjoyed by a person with regard to the land of another person, the exercise of which interferes with the normal rights of the owner or occupier of the land.' (Butterworths Business and Law (Page 5)
Dictionary (1997)). The registration of an easement must therefore not be equated with the registration of a by-law. The ST Act contains several provisions that enable the Tribunal a role in the registration of a by-law, but the applicant must show that the Tribunal has a similar function in regard to the registration of an easement. While a by-law generally regulates the use of common property by lot owners, an easement gives certain rights to land to a person - it is generally referred to as a proprietary interest. 15 The Tribunal is of the view that it does not have the power to join the Registrar of Titles to these proceedings and that it does not have the power to grant interim relief as sought by the applicant. 16 The reasons for this view are as follows: 1. The powers of the Tribunal are limited to the provisions of the ST Act. The Tribunal does not have inherent jurisdiction and is constrained by the powers as set out by the enabling statute. This limitation applies to judicial and ordinary members. If a matter cannot be placed in the 'pigeonhole' of the Tribunal's sphere of jurisdiction, another court must proclaim on the dispute. Section 82(2)(a) of the ST Act clearly limits the power of the Tribunal to give interim relief to matters that arise 'under this Division'. The Tribunal is not satisfied that the grant of interim relief to stop the registration of an easement falls within the scope of its powers as set out in Div 3 of the ST Act. 2. Section 20 of the ST Act provides that the strata company may, pursuant to a resolution without dissent, lodge an easement for registration. The instrument must be accompanied by a certificate under the seal of the strata company that the resolution was duly passed and that all necessary consents were given (s 20(5)) of the ST Act. In these proceedings it appears from the submission of the applicant that the lodgement of the easement was not done by the strata company but by another person. If that is indeed the case, a court of competent jurisdiction must be approached for urgent relief. There is no power in the ST Act for the Tribunal to interfere with the process. (Page 6)
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there any reference to the Tribunal making determinations in regard to an easement. The only conclusion is that Parliament had not intended for the Tribunal to make orders - be it for final or interim relief - in regard to easements.
Conclusion 17 The conclusion of the Tribunal is that the application for interim relief to prevent the registration of an easement is misconceived and must be dismissed. The matter may obviously be taken to a court of competent jurisdiction. 18 In regard to the main application that deals with the validity of a by-law, it appears that it may fall within the jurisdiction of the State Administrative Tribunal and the directions hearing that is scheduled for the matter will therefore proceed unless the applicant seeks leave to withdraw its application and proceed with the entire matter in another court.
Order The application for interim relief is dismissed. |