PARKER and THE OWNERS OF TIMBERSIDE VILLAS - STRATA PLAN 27426
[2006] WASAT 254
•25 AUGUST 2006
PARKER and THE OWNERS OF TIMBERSIDE VILLAS - STRATA PLAN 27426 [2006] WASAT 254
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 254 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:3350/2005 | 8 MAY 2006 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 25/08/06 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | NORMA PARKER THE OWNERS OF TIMBERSIDE VILLAS - STRATA PLAN 27426 |
Catchwords: | Strata Titles Act 1985 (WA) Application under s 102 for appointment of administrator |
Legislation: | Strata Titles Act 1985 (WA), s 79(2), s 102 |
Case References: | Nil Breedon and Strata Company (unidentified – Unreported decision dated 12 January 1988) Coleman and The Owners of Mt Prospect Apartments – Strata Plan 3951 ST/2004 – 000055 (Unreported decision dated 19 October 2004) Gillett and The Owners of 130 Mandurah Terrace, Mandurah – Strata Plan 9721 ST/2002 – 000116 (Unreported decision dated 22 August 2003) Parker and Timberside Villas Management Pty Ltd RT No 2004 – 000002 (Unreported decision dated 31 August 2004) Timberside Villas Management Pty Ltd v Parker [2005] WADC 246 (Unreported decision dated 15 December 2005) Whichello and Townhouse 76 – Strata Plan 461 (Unreported decision dated 6 July 1999) |
Orders | 1. The application is dismissed.,2. The respondent is directed to serve a copy of this order and the Tribunal's Reasons for Decision dated 25 August 2006 on all persons who were given notice of the proceedings by it pursuant to s 79(2) of the Strata Titles Act 1985 (WA) and who made written submissions to the Tribunal. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : PARKER and THE OWNERS OF TIMBERSIDE VILLAS - STRATA PLAN 27426 [2006] WASAT 254 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 8 MAY 2006 DELIVERED : 25 AUGUST 2006 FILE NO/S : CC 3350 of 2005 BETWEEN : NORMA PARKER
- Applicant
AND
THE OWNERS OF TIMBERSIDE VILLAS - STRATA PLAN 27426
Respondent
Catchwords:
Strata Titles Act 1985 (WA) - Application under s 102 for appointment of administrator
Legislation:
Strata Titles Act 1985 (WA), s 79(2), s 102
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr D Levvy (Acting as Agent)
Respondent : Mr T Leppard (Acting as Agent)
Solicitors:
Applicant : N/A
Respondent : Timberside Villas Strata Council
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Breedon and Strata Company (unidentified – Unreported decision dated 12 January 1988)
Coleman and The Owners of Mt Prospect Apartments – Strata Plan 3951 ST/2004 – 000055 (Unreported decision dated 19 October 2004)
Gillett and The Owners of 130 Mandurah Terrace, Mandurah – Strata Plan 9721 ST/2002 – 000116 (Unreported decision dated 22 August 2003)
Parker and Timberside Villas Management Pty Ltd RT No 2004 – 000002 (Unreported decision dated 31 August 2004)
Timberside Villas Management Pty Ltd v Parker [2005] WADC 246 (Unreported decision dated 15 December 2005)
Whichello and Townhouse 76 – Strata Plan 461 (Unreported decision dated 6 July 1999)
(Page 3)
Summary of the Tribunal's decision
1 The applicant sought an order for the appointment of an administrator under s 102 of the Strata Titles Act 1985 (WA).
2 The application was related to other proceedings in file no CC 3349/2005 in which the applicant sought an order for the termination of a management agreement between the respondent and a strata manager. The applicant relied on the same material facts in both applications which were heard together.
3 In matter no CC 3349 of 2005, the Tribunal made an order shortening the term of the management agreement so that it would be terminated with effect from 31 October 2006. The Tribunal concluded, for the same reasons as set out in the other proceedings, that an insufficient case was made out for the extreme remedy of appointing an administrator, which the Tribunal considered should be a remedy of last resort. In view of the order made in the related proceedings shortening the term of the management agreement, the Tribunal concluded that there was no reason to believe that the members of the strata council, with the benefit of the guidance provided by the Tribunal's reasons for decision in those proceedings, would not properly discharge their obligations thereby obviating any present need for an administrator. In any event, the Tribunal did not consider that the circumstances disclosed by the proceedings warranted the appointment of an administrator, nor did the Tribunal consider that the orders sought were appropriate. The Tribunal accordingly dismissed the application.
Background
4 The relevant background to these proceedings is set out in the related decision under matter no CC 3349 of 2005 to which the Tribunal refers.
Order sought
5 The applicant expressed the order sought by her in the following terms.
1. Conduct a forensic accounting investigation into the manner and application of funds raised from the proprietors of lots on Strata Plan 27426 with the specific aim of distinguishing between funds raised, held and expended under the Residency Deed (as also sought
- under Order 7 of my application in Matter No. CC/3349 of 2005).
- 2. Such investigation to incorporate, inter alia, examination of records maintained by the Owners of Strata Plan 27426 (Strata Company) and Timberside Villas Management Pty Ltd and interview of employees and/or representatives of each organisation.
3. To identify and report on any misappropriation, misapplication or misallocation of funds, as well as any incorrect raising of funds through the charging of fees to Strata owners.
4. Where such has occurred, to assist in correcting such breaches, whether by correcting the accounting records, organising refunds or additional payments, seeking transfers of funds from bank or financial institution accounts or recovering funds from third parties, with the assistance of legal professionals if required (as also sought under Order 8 of my application in Matter No. CC/3349 of 2005).
5. To assist in the preparation of the 2006/07 budget.
6. To also carry out the following additional duties if the current Strata manager's appointment is terminated, as sought under Order 1 of my application in Matter No. CC/3349 of 2005:
6.1 To assist in the appointment of an interim Strata Manager – that is a member of the Strata Titles Institute of Western Australia (Inc.) and is in no way affiliated with Fabray Pty Ltd or Timberside Villas Management Pty Ltd or their Directors or Subsidiaries – to chair and keep minutes at all strata meetings held during a 3-month transition period.
6.2 To seek assistance in the preparation of a new Management Agreement for continued management of the Strata Company and to obtain approval of the new Management Agreement from the State Administrative Tribunal
- (as also sought under Order 4 of my application in Matter No. CC/3349 of 2005).
- 6.3 To assist in seeking and appointing a new 'permanent' Strata Manager – that is a member of the Strata Titles Institute of Western Australia (Inc.) and is in no way affiliated with Fabray Pty Ltd or Timberside Villas Management Pty Ltd or their Directors or Subsidiaries – to take over the Strata Management role at the completion of the transition period.
Considerations
6 For the reasons given in matter no CC 3349 of 2005, the Tribunal concluded that it was appropriate to terminate the strata manager's agreement, and to make ancillary orders precluding the respondent from entering into a further management agreement with the current strata manager.
7 The effect of the above order is intended by the Tribunal to ensure that the strata council acts independently and in the knowledge that the accounting procedures followed, and in particular the breakdown and allocation of expenses as between the strata company and the retirement village concerned, have not been properly carried out to date.
8 Until now, it is apparent that the strata council has relied considerably on the strata manager, which is a company related to the developer of the retirement village concerned. The strata council should now understand that it has an obligation to ensure that the strata company discharges its duties in relation to the management, repair and maintenance of common property and the provision of funds for expenditure relating thereto. If any difficulties are experienced, that could be the subject of a new application to the Tribunal, but there is no reason for the Tribunal to believe that the individual members of the council wish to do anything but properly discharge their responsibilities.
9 The appointment of an administrator should be a remedy of last resort. In this matter, the applicant seeks to have appointed as the administrator, Mr George Aubrey Lopez, a chartered accountant. Mr Lopez has no experience of strata management. The applicant submits that Mr Lopez should be appointed with the specific duties of conducting a forensic accounting investigation of the affairs between the strata company and the retirement village. Apart from anything else, the
(Page 6)
- Tribunal considers that such a course would be inappropriate and that, if there was merit in an application for the appointment of an administrator, that person should be a person with experience in strata management, who could be empowered, in an appropriate case, to engage an accountant to carry out any necessary investigation.
10 In all the circumstances, the Tribunal does not consider that it would be appropriate to appoint an administrator and the application will be dismissed.
Orders
11 The Tribunal makes the following order:
1. The application is dismissed.
2. The respondent is directed to serve a copy of this order and the Tribunal's Reasons for Decision dated 25 August 2006 on all persons who were given notice of the proceedings by it pursuant to s 79(2) of the Strata Titles Act 1985 (WA) and who made written submissions to the Tribunal.
I certify that this and the preceding [11] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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