Payne and Owners of Strata 39733
[2017] WASAT 157
•12 DECEMBER 2017
PAYNE and OWNERS OF STRATA 39733 [2017] WASAT 157
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 157 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:1384/2015 | 27, 30 AND 31 OCTOBER 2017 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 12/12/17 | |
| 43 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | COLIN DAVID PAYNE DAVID RODERICK PAYNE ELIZABETH PAYNE OWNERS OF STRATA 39733 ADAM COURTNEY BREWER BRIDGET JANE CHEFFINS |
Catchwords: | Strata Titles Act 1985 (WA) Application for Strata Company to enforce bylaws, to refrain from entering into compromise, to take action for recovery of expert consultants' costs, and subject to conditions to carry out repairs to common property, take action for recovery of repair and related costs, to commence further proceedings in the Tribunal to determine ownership of certain air conditioners, and for an order for repayment of levies charged in respect of the current proceedings Whether Strata Company has refused or failed to exercise relevant power or duty Whether Tribunal has jurisdiction Whether Strata Company obliged to carry out common property repairs without delay Whether Strata Company permitted to negotiate time to carry out repairs and cost sharing arrangement |
Legislation: | Building Act 2011 (WA) Strata Titles Act 1985 (WA) s 3, s 7(2), s 35, s 35(1)(b), s 35(1)(c), s 37(1)(f), s 42, s 42(6), s 42(8), s 44(1), s 81(11), s 83, s 84, s 90, s 103(G) Surveillance Devices Act 1998 (WA) |
Case References: | Brosolo and Council of Owners of 25 St Leonards Strata Plan 352 [2008] WASAT 285 Colin David Payne & Ors and Owners of Strata 39733 & Ors [2016] WASAT 90 Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181 The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1 |
Orders | 1. The proceedings against the first, second and third respondents are dismissed. |
Summary | The applicants sought orders requiring the first respondent Strata Company to commence repairs to a common property floor slab if those repairs were not carried out by the second and third respondents within a 28day period, and that the first respondent be required to take action against the second and third respondents to recover associated engineering, technical and legal costs, and if the first respondent carried out the repairs, the costs of repair of the floor. A further order was sought requiring the first respondent to commence proceedings before the Tribunal to determine the ownership of certain air conditioning systems. Finally an order was sought for the repayment of levies paid by the applicants in respect of the costs of the proceedings. ,The Tribunal found it did not have jurisdiction to determine the air conditioning issue as there was no dispute between the parties nor had any circumstance arisen which would allow the Tribunal to deem that there had been any failure or refusal on the part of the first respondent to exercise any power, authority, duty or function conferred or imposed under the Strata Titles Act 1985 (WA). If the Tribunal was wrong in that conclusion it in any event found on the facts that the first respondent had acted correctly in treating certain of the air conditioners as common property and that in respect of other air conditioners there was insufficient evidence to conclude that the first respondent had arguably erred in the way in which it had dealt with them as common property. ,The Tribunal rejected the submissions made on behalf of the first respondent that the Tribunal did not have jurisdiction to determine the claim for orders requiring the first respondent to take action in relation to the recovery of engineering, technical and legal costs associated with the floor issue. The Tribunal found on the facts that the first respondent had made a decision to pursue a course aimed at reaching a compromise of claims against the second and third respondent knowing that the applicants' asserted action should be taken against them without delay for the recovery of such costs. Consequently there was a dispute in relation to which orders could be made in settlement. ,The Tribunal concluded that the s 35(1)(b) and (c) of the Strata Titles Act 1985 (WA) did not prevent a strata company delaying the carrying out of maintenance if there were sensible and logical reasons for doing so in circumstances in which consideration of health, safety or other factors did not require the work to be urgently undertaken. On the facts the Tribunal concluded that the first respondent had acted prudently and based on legal and engineering advice so there was a sensible and logical basis for the course it had adopted, such that, intervention by the Tribunal was not justified. ,As the applicants had been unsuccessful in the proceedings, the Tribunal held they were not entitled to an order for repayment of levies paid by them in respect of the costs of the proceedings. The proceedings against all respondents were accordingly dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STRATA TITLES ACT 1985 (WA) CITATION : PAYNE and OWNERS OF STRATA 39733 [2017] WASAT 157 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 27, 30 AND 31 OCTOBER 2017 DELIVERED : 12 DECEMBER 2017 FILE NO/S : CC 1384 of 2015 BETWEEN : COLIN DAVID PAYNE
- First Applicant
DAVID RODERICK PAYNE
Second Applicant
ELIZABETH PAYNE
Third Applicant
AND
OWNERS OF STRATA 39733
First Respondent
ADAM COURTNEY BREWER
Second Respondent
BRIDGET JANE CHEFFINS
Third Respondent
Catchwords:
Strata Titles Act 1985 (WA) Application for Strata Company to enforce bylaws, to refrain from entering into compromise, to take action for recovery of expert consultants' costs, and subject to conditions to carry out repairs to common property, take action for recovery of repair and related costs, to commence further proceedings in the Tribunal to determine ownership of certain air conditioners, and for an order for repayment of levies charged in respect of the current proceedings Whether Strata Company has refused or failed to exercise relevant power or duty Whether Tribunal has jurisdiction Whether Strata Company obliged to carry out common property repairs without delay Whether Strata Company permitted to negotiate time to carry out repairs and cost sharing arrangement
Legislation:
Building Act 2011 (WA)
Strata Titles Act 1985 (WA) s 3, s 7(2), s 35, s 35(1)(b), s 35(1)(c), s 37(1)(f), s 42, s 42(6), s 42(8), s 44(1), s 81(11), s 83, s 84, s 90, s 103(G)
Surveillance Devices Act 1998 (WA)
Result:
Application dismissed
Summary of Tribunal's decision:
The applicants sought orders requiring the first respondent Strata Company to commence repairs to a common property floor slab if those repairs were not carried out by the second and third respondents within a 28day period, and that the first respondent be required to take action against the second and third respondents to recover associated engineering, technical and legal costs, and if the first respondent carried out the repairs, the costs of repair of the floor. A further order was sought requiring the first respondent to commence proceedings before the Tribunal to determine the ownership of certain air conditioning systems. Finally an order was sought for the repayment of levies paid by the applicants in respect of the costs of the proceedings.
The Tribunal found it did not have jurisdiction to determine the air conditioning issue as there was no dispute between the parties nor had any circumstance arisen which would allow the Tribunal to deem that there had been any failure or refusal on the part of the first respondent to exercise any power, authority, duty or function conferred or imposed under the Strata Titles Act 1985 (WA). If the Tribunal was wrong in that conclusion it in any event found on the facts that the first respondent had acted correctly in treating certain of the air conditioners as common property and that in respect of other air conditioners there was insufficient evidence to conclude that the first respondent had arguably erred in the way in which it had dealt with them as common property.
The Tribunal rejected the submissions made on behalf of the first respondent that the Tribunal did not have jurisdiction to determine the claim for orders requiring the first respondent to take action in relation to the recovery of engineering, technical and legal costs associated with the floor issue. The Tribunal found on the facts that the first respondent had made a decision to pursue a course aimed at reaching a compromise of claims against the second and third respondent knowing that the applicants' asserted action should be taken against them without delay for the recovery of such costs. Consequently there was a dispute in relation to which orders could be made in settlement.
The Tribunal concluded that the s 35(1)(b) and (c) of the Strata Titles Act 1985 (WA) did not prevent a strata company delaying the carrying out of maintenance if there were sensible and logical reasons for doing so in circumstances in which consideration of health, safety or other factors did not require the work to be urgently undertaken. On the facts the Tribunal concluded that the first respondent had acted prudently and based on legal and engineering advice so there was a sensible and logical basis for the course it had adopted, such that, intervention by the Tribunal was not justified.
As the applicants had been unsuccessful in the proceedings, the Tribunal held they were not entitled to an order for repayment of levies paid by them in respect of the costs of the proceedings. The proceedings against all respondents were accordingly dismissed.
Category: B
Representation:
Counsel:
First Applicant : Mr P McGowan
Second Applicant : Mr P McGowan
Third Applicant : Mr P McGowan
First Respondent : Mr E Heenan
Second Respondent : N/A
Third Respondent : Mr C Miocevich
Solicitors:
First Applicant : Francis Burt Chambers
Second Applicant : Francis Burt Chambers
Third Applicant : Francis Burt Chambers
First Respondent : Norton Rose Fulbright Australia
Second Respondent : Integra Legal
Third Respondent : C & G Miocevich Law Offices
Case(s) referred to in decision(s):
Brosolo and Council of Owners of 25 St Leonards Strata Plan 352 [2008] WASAT 285
Colin David Payne & Ors and Owners of Strata 39733 & Ors [2016] WASAT 90
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1
Introduction
1 For convenience and without meaning any disrespect to any of the parties, in these reasons:
• The first, second and third applicants, Mr Colin David Payne, Mr David Roderick Payne and Ms Elizabeth Payne, are referred to jointly, as the Paynes, or individually by their first and last names;
• The first respondent, the Owners of Strata Plan No. 39733, is referred to as the Strata Company;
• The second respondent, Dr Adam Courtney Brewer, is referred to as Brewer; and
• The third respondent, Ms Bridget Jane Cheffins, is referred to as Cheffins.
2 The strata scheme established by the registration of Strata Plan 39733 on 27 March 2001 includes three commercial multi-storey buildings comprised of 20 lots and common property. The parties are all owners of lots within the strata scheme, save of course for the Strata Company, and also save for Brewer. Until at least April 2004, Brewer was the owner of Lot 1 within the strata scheme, which he then sold to Cheffins and leased back from her. He remains the occupier of that lot at which he conducts a dental surgery, under a lease understood to be expiring in April 2018.
3 Until late 2014 all of the Paynes were members of the Council of Owners of the Strata Company (Council of Owners). There is evidence of tension existing within the Council of Owners which led to the resignation of the Chair Ms Sharon Kais and of two other members, Mr Tony and Mrs Maria Fifield in August 2013. It appears that the Paynes had no quarrel with the management of the Strata Company through the Council of Owners until about September 2014, when the elected Chairman of the Strata Company, Mr Lane Patrick Russell Taylor (Lane Taylor), advocated an approach to dealing with the repair of the common property floor of Lot 1 with which they disagreed. It is common cause between the parties and it is the case that the strata plan shows that the lower boundaries of the lots are the upper surface of the floor so that the substrate of the floor is common property. At the Annual General Meeting (AGM) held on 18 December 2014, the members voted to reduce the number of council members from seven members to five members. None of the Paynes were reelected.
4 Colin Payne informed Lane Taylor prior to the 2014 AGM commencing that he did not trust him. Colin Payne's evidence in these proceedings is that he also did not trust the members of the Council of Owners to act fairly in relation to his interests in the strata scheme. Further, he felt that Lane Taylor was leading the Council of Owners in the wrong direction in respect of the Lot 1 issue and was intent on benefitting the owner of Lot 1, Cheffins, over the interests of other lot owners.
5 The Paynes later became concerned about the manner in which the Council of Owners and other members were dealing with issues related to the replacement or repair of the air conditioning plant within the strata building.
6 On 2 September 2015, the Paynes commenced these proceedings seeking a range of orders primarily requiring Brewer and Cheffins to reimburse rectification costs incurred by the Strata Company, and commence carrying out the necessary remedial work within three months, failing which, that the Strata Company carry out the works, invoice the costs regularly to Brewer and Cheffins and failing payment, initiate legal proceedings for recovery of the costs. Failing compliance by the Strata Company, the appointment of an administrator was sought. Other orders were directed at preventing the Strata Company paying for the maintenance or repair of a Hitachi air conditioner on level 3, that levies relating thereto be varied to apply only to owners on level 3 and that no existing R22 air conditioning units be re-gassed until a re-gas had been trialled.
7 The matter was referred to mediation which was unsuccessful and by order made on 21 December 2015, leave was granted for the application for the appointment of an administrator to be heard first. On 22 July 2016, the Tribunal published its reasons for decision refusing that aspect of the application, see Colin David Payne & Ors and Owners of Strata 39733 & Ors [2016] WASAT 90. The Tribunal found that the Strata Company was not dysfunctional or incapacitated to the degree required and that the Strata Company had not refused or failed, nor did it not have the ability to deal with the Lot 1 repair and air conditioning issues, such as to justify the appointment of an administrator.
8 That left for resolution the remaining orders sought. However, further dispute arose between the Paynes and the Strata Company relating to inspection of documents because of claims of legal professional privilege. The orders sought were amended and then re-amended and substituted pursuant to a Minute dated 21 November 2016. Firstly, under s 90 of the Strata Titles Act 1985 (ST Act), orders were sought for access to legal advice provided to the Strata Company and communications with the City of Swan (the City). The remaining orders, outlined above, were amended in a number of respects which it is not necessary to detail with at this stage, other than to note that no orders are now sought directly against Brewer and Cheffins requiring they carry out the remedial work. A copy of the above Minute of 21 November 2016 is attached marked 'Annexure A' for later reference as it will be necessary to consider the final orders sought when addressing jurisdictional issues raised by the Strata Company.
9 The Tribunal handed down an oral decision on 10 February 2017 resolving the access to documents issue. The Strata Company was required to produce for inspection legal advice in relation to which it was held that the Paynes, as members of the Strata Company, held a joint privilege.
10 The Tribunal had previously excused both Brewer and Cheffins from participation in the proceedings to appoint an administrator and the access to documents dispute. By the time those issues were resolved, a significant volume of documents in the form of statements of issues, facts and contentions, witness statements and attachments had been filed. The legal representatives for both Cheffins and Brewer submitted that the issues were not clear to them. As a result, the Tribunal directed that the Paynes file a substituted statement of issues, facts and contentions (substituted SIFC) so that all parties understood that the matter would go to final hearing based on the re-amended orders set out in the Minute dated 21 November 2017 and the substituted SIFC. The Paynes filed and served the substituted SIFC on 11 April 2017. The parties were also required to confer and agree to a bundle of documents for use at the hearing on the basis that the documents would be in evidence before the Tribunal, subject to any proper objection.
The hearing and stance of the parties
11 The bundle of documents agreed, comprising of two lever-arch files, became Exhibit 1 at the hearing. Included within the bundle of documents were:
• For the Strata Company, the witness statements of the Chair of the Strata Company Lane Taylor dated 28 April 2017;
• For the Paynes:
a) the witness statement of Mr Colin Payne dated 8 January 2016;
b) the supplementary witness statement of Mr Colin Payne dated 15 January 2016;
c) the further supplementary witness statement of Mr Colin David Payne dated 27 April 2017;
d) the witness statement of the former Strata Manager of the Strata Company Mr Gary Phillips dated 8 January 2016;
e) the supplementary witness statement of Mr Phillips dated 28 April 2017; and
f) the witness statement of the Executive Officer of a corporate proprietor and a member of the Council of Owners Mr Mark Jones dated 4 May 2017.
13 The Tribunal has accordingly proceeded on the basis that all documents included within the bundle of documents, including the witness statements and legal advice provided to the Strata Company, are before the Tribunal.
14 A further supplementary witness of Mr Phillips, dated 24 October 2017, was tendered at the hearing by the Paynes and was admitted as Exhibit 2.
15 The only witnesses of fact called, so that they were available for crossexamination, were Colin Payne and Lane Taylor. Only Lane Taylor was subjected to cross-examination. Lane Taylor gave careful considered evidence under cross-examination. There is no reason to doubt the accuracy of either his written or oral evidence. As none of the other witnesses were cross-examined, their evidence is also accepted save that in some respects, as noted below, the evidence of Colin Payne is not consistent with contemporaneous written records. Where such inconsistency exists, Tribunal accepts the contemporaneous record as the more accurate evidence.
16 Dr Anthea Louise Airey and Mr Peter Grant Airey were called by the Paynes to give expert engineering evidence.
17 The stance of the Strata Company and of Cheffins is disclosed in written submissions filed in response to the Paynes' substituted SIFC. Brewer filed a notice of intention to abide the decision of the Tribunal on 23 October 2017 and has accordingly played no part in the proceedings since that date.
18 The Strata Company has raised some jurisdictional issues which are addressed below, but in essence, the parties' positions are as follows:
19 The Paynes contend:
1) The Strata Company must enforce the by-laws which stipulate that a proprietor shall ensure that in carrying out structural alterations to a lot, the proprietor must restore any common property caused by the works to the state and condition it was in prior to the works being carried out (Sch 1 by-law 19.2 and 19.2.4), and that a proprietor shall be responsible for the cost to the Strata Company of making good any damage to common property caused by a proprietor (Sch.1 by-law 27.1);
2) That Brewer and Cheffins are liable in respect of the cost of restoring the common property substrate forming the floor of Lot 1 to the state and condition it was in prior to the building works being carried out which damaged the floor;
3) That liability for repair and replacement costs in respect of the air conditioners in question has been accepted by the Strata Company when the responsibility of the Strata Company is not established and that the Strata Company should be compelled to commence proceedings before the Tribunal to determine whether the air conditioners are common property; and
4) That the Strata Company should be ordered to refund the levies paid by the Paynes relating to the costs of these proceedings.
20 The Strata Company contends:
1) That it has acted properly in carrying out investigations through expert engineers and contractors to establish the appropriate method of repair or replacement of the Lot 1 floor;
2) That having regard to the uncertainty that legal proceedings would be successful, as well as the risk attaching to possible claims against it for loss of rent from Cheffins and loss of profits from Brewer, it is in the interests of all proprietors to endeavour to reach an agreement with them as to the appropriate time to carry out the necessary work and a basis for cost sharing in respect of the repairs to be carried out upon termination of the current lease term of Lot 1;
3) That all the evidence points to the air conditioners being common property and there is no dispute in which any party asserts otherwise so that there would be no utility in an order requiring the Strata Company to commence proceedings before the Tribunal to determine the ownership thereof, even if it had jurisdiction to do so; and
4) That unless the Paynes succeed in whole or in part against the Strata Company, there is no basis upon which to order a refund of levies charged to the Paynes relating to the costs of the proceedings, and in any event, if they were successful, the Tribunal in the exercise of its discretion should not order any such refund.
21 Cheffins contends that:
1) There is no allegation made by the Paynes of any conduct by her of any breach of the by-laws as would give rise to any liability to the Strata Company;
2) That the orders sought requiring the Strata Company to take action against her appear to be based upon no more than early legal advice that the Strata Company place the contractor who caused damage to the Lot 1 floor, Brewer, and herself, on notice of possible claims in respect of the damage to the common property floor; and
3) Later advice from counsel is to the effect that no claim lies against Cheffins as a successor in title to the proprietor, Brewer, who caused or allowed the work to be undertaken.
22
The Issues
23 The Paynes substituted SIFC, the Strata Company's submissions and Cheffins' submissions raise a number of issues all of which have been considered and are subsumed within the following issues which will be determinative of the proceedings.
1) Does the Tribunal have jurisdiction to make the orders sought by the Paynes firstly, for the recovery of engineering, technical and legal costs associated with the damage to the common property floor slab of Lot 1 and secondly, to commence proceedings before the Tribunal to determine ownership of air conditioning plant?
2) Does the Strata Company's statutory duty under s 35(1)(c) of the ST Act require it to replace the base slab of the floor of Lot 1?
3) Is the Strata Company able to pursue the making of a compromise with Brewer and Cheffins in respect of the Lot 1 floor issue, or is it obliged under s 35(1)(b) of the ST Act and for the benefit of all of the proprietors to recover the full costs of repair and associated consultant's costs from Brewer and Cheffins?
4) Has the Strata Company arguably erred in treating the Hitachi air conditioning system which serviced Lot 16, the split air conditioning system servicing Lot 7, their current replacement systems, and other split air conditioning systems, as being common property?
5) If the answer to 4 is yes, should the Strata Company be ordered to commence proceedings before the Tribunal to determine whether such systems and all other split system air conditioners are common property or not?
6) Are the Paynes entitled to an order that the Strata Company refund to them levies paid in respect of the costs of these proceedings, and if so should such an order be made?
24 The jurisdictional issues need to be considered within a factual matrix and will therefore be dealt with after issues 2 - 4 above. The determination of issues 2 4 is subject to the determination of the jurisdictional issues which if determined in favour of the Strata Company, will result in the dismissal of the proceedings in relation to the particular orders concerned.
Issue 2: Does the Strata Company's statutory duty under s 35(1)(c) of the ST Act require it to replace the base slab of the floor of Lot 1?
25 The parties are actually in agreement in relation to this issue. The Strata Company's legal advice from various sources, as appears from the factual findings below, has always been to the effect that it has the obligation to repair the common property floor of Lot 1 by reason of the duty to keep in good and serviceable repair, properly maintain the common property and where necessary renew and replace it as is clearly expressed in s 35(1)(c) of the ST Act. That is also the position of the Paynes. The real issue is whether the Strata Company is in breach of that duty by reason of its attempt to reach a compromise with Brewer and Cheffins as to the timing of when the repairs be carried out and sharing of remedial costs. This will be canvassed in considering issue 3 below.
Issue 3: Is the Strata Company able to pursue the making of a compromise with Brewer and Cheffins in respect of the Lot 1 floor issue, or is it obliged under s 35(1)(b) of the ST Act and for the benefit of all of the proprietors to recover the full costs of repair and associated consultant's costs from Brewer and Cheffins?
Factual findings relating to Lot 1 issues
26 The facts hereinafter stated have been extracted from documents provided by the parties the contents of which are unchallenged, and from unchallenged evidence from the witnesses, including expert engineering witnesses, which constitute facts found by the Tribunal. Where there is any controversy between the parties, reasons will be given for the facts found.
27 Between approximately January and April 2004, Brewer, as the then proprietor of Lot 1, commissioned work on the fit-out of Lot 1 to convert it from use as a restaurant to use as a dental surgery. In the course of that work, the concrete floor slab was chased to create service channels for the provision of water and electricity through conduits to dental chairs located in each suite. The chasing penetrated the full depth of the slab resulting in damage to the waterproof membrane which appears to have been removed from beneath the cut channels. Sections of the reinforcing mesh placed within the slab were also removed.
28 On a date not clearly established on the evidence but after the above works had been completed, Brewer sold Lot 1 to Cheffins but remains in occupation under a lease which was not produced in evidence.
29 None of the above building work has any structural consequences but it has resulted in moisture ingress in the form of rising damp which has caused the vinyl floor covering to separate from the concrete slab forming lumps in some areas adjacent to the service channels. These constituted trip hazards (since remedied). The rising damp has potential, if not addressed, to cause an increase in relative humidity leading to condensation and mould growth detrimental to health and possibly causing deterioration to floor coverings and cabinetry. There is also a risk of corrosion of the reinforcement mesh or 'concrete cancer'.
30 It obviously took some years for the consequences of the defective building work to become apparent. The matter was first brought to the attention of the owners at an AGM held on 15 November 2011. Colin Payne sets out in his statement of 8 January 2016, the investigative steps which were commenced by the Council of Owners of which he was then a member. This involved firstly the taking of a core sample in March 2012. A report was obtained from an engineer, Mr Killian Mason, on 20 April 2012 which was not in evidence but is referred to in a later report from engineers Airey Taylor Consulting (ATC), authored by Mr Killian Mason and Dr Anthea Airey dated 12 March 2014. Contractors then attended in May 2012 to repair damage occasioned to the pipework under the slab when the core was taken. This involved cutting out a larger section of the slab encompassing the core removed from the slab. Photographs were taken and Colin Payne observed the reinforcing mesh had been cut and removed in the channel area and that there was no waterproof membrane under or over the pipework, although remnants of it were visible at the edges of the section which had been cut out.
31 Exhibit 9 which is a chronological running record from the City records that from 29 June 2012, David Payne was pressing for the City to become involved. The City considered that any building issue was a civil matter and that there were no health grounds on which to intervene. The relevant records of the City were produced under subpoena issued at the request of the Paynes. There is no evidence that the Council of Owners were aware of David Payne's contact with the City.
32 On 18 April 2013, the Council of Owners were advised by the Strata Company' solicitor Mr Atkinson, who attended a meeting of the Council of Owners on that date as an invitee, that the Strata Company bore the responsibility of repairing the Lot 1 floor.
33 The witness statement of Mr Gary Phillips of MMJ Real Estate Pty Ltd, the strata manager at the relevant time, which was tendered on behalf of the Paynes, refers to dissension within the Council of Owners and attaches an email from Ms Kais dated 7 August 2013. The email sets out Ms Kais' reasons for resigning as the Chair of the Council of Owners which includes the reaction from the Paynes to the above advice in terms:
This is where the Paynes had an adverse reaction to costs to bear and cost recovery. From this they are concerned as having the highest investment they have the most to lose.
34 The Paynes are joint owners of Lots 5, 6, 12 and 15 with an aggregate unit entitlement of 199 out of a total unit entitlement of 1,000 so in effect bear 20% of all the Strata Company costs.
35 Ms Kais also recorded that following the above advice and reaction from the Paynes, Colin Payne wished to take the Lot 1 issue to the Tribunal. She records that she responded this could not be done without investigation first.
36 Shortly, prior to this, David Payne had renewed his efforts to get the City involved - there is a note of correspondence from him dated 13 July 2013. This resulted in the City carrying out an inspection in September 2013 and requesting the strata manager Mr Phillips to provide a structural engineer's report. There is some unexplained delay but in a note dated February 2013[sic 2014], Mr Phillips reported to the City that ATC had been engaged. ATC's Report of 12 March 2014 reflects that a specialist contractor had been used to carry out a ground penetrating radar scan to establish the location of the chases cut into the slab, which was needed to assess any structural consequences. ATC concluded no damage had been caused to the footings but that the existence of blistering of the vinyl flooring is compelling evidence of the absence of a water vapour barrier under the concrete infill of the chase. APC made recommendations for a 'topside' treatment involving a new membrane being placed over the top of the slab and the laying of a topping slab above it.
37 At the AGM on 26 September 2013, a resolution was passed that the Council of Owners with the support of a suitably qualified professional make application to the Tribunal to seek rulings:
1. To establish what parties are responsible for the repair or replacement of the Lot 1 floor slab;
2. To determine what party or [parties] [are] responsible for any loss of income suffered by Brewer while remedial work was carried out;
3. To determine the ability of the City to approve the works to be carried out without the approval of the Strata Company in general meeting;
but subject to first exhausting whether the Strata Company was entitled to an insurance indemnity.
38 The motion was moved by Rebecca Kiriakidis, the owner of Lot 16, and seconded by Elizabeth Payne. The motion accords with the course proposed by Colin Payne at the meeting of the Council of Owners held on 18 April 2013.
39 A meeting of the Council of Owners was convened on 6 November 2013 to discuss the implementation of the above resolution passed at the AGM on 26 September 2013. The Strata Company's then solicitor, Mr Mark Atkinson of Atkinson Legal, was invited to attend. Lane Taylor chaired the meeting and made notes recording the meeting which were circulated to all attendees who included David and Elizabeth Payne, none of whom questioned the notes (LPRT 3 to the statement of Lane Taylor, dated 28 April 2017 (Exhibit 1 Vol 1 page 34). Although Lane Taylor regarded the insurance indemnity issue as having been exhausted, Mr Atkinson recommended the policy be reviewed again before completely discounting the making of a claim under the policy. Mr Atkinson advised that an application to the Tribunal was not the solution as the Tribunal could award monetary compensation only up to an amount of $1000. He advised the Court would be the appropriate forum but warned that court proceedings should not be seen as an easy solution as a contested action would likely incur legal costs of up to $50,000. Further, Mr Atkinson referred to the Strata Company's obligations under s 35 of the ST Act and advised that who was at fault or could be blamed, were secondary and academic considerations as the Strata Company was obliged to repair common property and if the Council of Owners was not seen to be pressing on, they would be failing in their duties and be in breach of s 35 of the ST Act. While there might be a right to put the matter before the courts to seek reimbursement from contractors, past or present owners (of Lot 1) that would be 'ways down the track'. Mr Phillips, the strata manager, reminded the meeting that the next step would be to get quotes from two engineers as resolved at the 2013 AGM.
40 The Minute of the Council of Owners meeting held on 7 January 2014 shows that the Council of Owners was taken up with determining which firm of consulting engineers it should engage to investigate, cost the remedial works and provide a structural adequacy report (presumably in this latter respect to be able to respond to the City). As outlined above ATC was retained and provided a report on 12 March 2014. The City records reflect receipt of the required structural engineer's report on 30 March 2014.
41 The ATC report of 12 March 2014 was also provided to the Strata Company's then solicitor, Mr Atkinson who provided written advice by letter dated 18 March 2014, making it plain that the obligation was upon the Strata Company to repair the common property slab and that it ought therefore to implement the remedial works recommended by ATC (the 'topside' remedy). Mr Atkinson also advised that the obligation to repair the common property is not affected by the prospect that the Strata Company might have any right to sue somebody else for the damage to the common property. Reference is made in the letter of advice to a letter from Cheffins' solicitors dated 12 September 2013, threatening to sue the Strata Company. This letter was not produced in evidence but there is no reason to believe that it was not sent and received. While it is not clear on what basis Cheffins threatened to sue, it appears that the threat was to sue for any loss of rental if the Strata Company entered Lot 1 and disrupted the conduct of the dental practice resulting in a refusal to pay rent. Mr Atkinson also warned of the possibility of Brewer commencing legal proceedings against the Strata Company. The potential claims were discussed by Mr Atkinson in terms consistent with the above at a later meeting of the Council of Owners on 25 March 2014 - LPRT 9 to the statement of Lane Taylor dated 28 April 2017 (Exhibit 1 Vol 1 page 34).
42 At the meeting of the Council of Owners on 25 March 2014, consideration was given to how to advance the Lot 1 issue. Dr Airey and Mr Atkinson were in attendance to assist. It was agreed that ATC would review what role they could take as Mr Atkinson advised ATC could not be relied on as an expert (witness in recovery proceedings) if they oversaw the remedial works. A number of specific motions were passed for Atkinson Legal to action particular recommendations made in the letter of advice dated 18 March 2014. This included giving notice of possible claims to the contractor who carried out the Lot 1 fit-out works and to Brewer and Cheffins and to give consideration to a possible proceeding (before the Tribunal) under s 103G of the ST Act against the owner of Lot 1. This would require Cheffins to pull down, remove or alter anything in place as a result of work done within Lot 1 in breach of s 7(2) of the ST Act. This provision requires prior approval from the Strata Company for any structure to be erected or any structural alteration within a lot. It was also agreed that the Lot 1 issue should be deferred for consideration at an Extraordinary General Meeting. This appears to accord with advice from Atkinson Legal in the letter of 18 March 2014 that the authority the Council of Owners in general meeting would be required to carry out the repairs and to incur the cost of repairs to be raised by levies or by obtaining a loan. All of the Paynes were present at this meeting.
43 On 7 May 2014, the City wrote to the strata manager following consideration of the ATC report of 12 March 2014. The City stated that legal advice received was that the remediation of the Lot 1 floor was the responsibility of the Strata Company. The letter did not constitute any formal notice under the Building Act 2011 (WA) although reference was made to the power thereunder to issue a Building Order. The City requested that the ATC 'top-side' remedial work be carried out and that it be contacted within 14 days to indicate a schedule of works. Under cross-examination, Lane Taylor testified that the Strata Company did not respond within 14 days but a meeting was arranged between officers of the City and the Council of Owners. The meeting took place on 10 June 2014 (Exhibit 7). There is no evidence of what was communicated at that meeting but it appears the City did not thereafter press for the repairs to be carried out within any specific time frame.
44 David Payne responded to the letter on 30 May 2014 as appears from a file note of that date made by Ms Kay Smith, a development Compliance Officer employed by the City (Exhibit 6). The note reflects what role David Payne had expected the City to take following his attempts to involve the City. He was angry about the letter. He wanted to know why the City was not prosecuting the owner of Lot 1.
45 On 11 June 2014, David Payne sent a memorandum addressed to all owners seeking agreement that the Strata Company pursue the contractor for the cost of remedial work to Lot 1. He raised a number of issues including taxation issues, the cost of removal and replacement of the Lot 1 fitout, loss of earnings claims and recovery of costs. He stated unequivocally:
I for one will not vote for any work or pay any money towards this disaster until some authority gives us a written direct order and will take responsibility for their direct order to The (sic) Strata Company.
…
An owner today is not necessarily an owner tomorrow.
Any owner paying into a fund to repair or replace the floor will (sic) may not be the owner receiving the funds as a result of a cost recovery action. How will this be resolved?
Speaking for the Payne family we resolve that the best course of action is to get paid for the floor then get it fixed.
…
46 On 9 July 2014, Lane Taylor set out in an email to the members of the Council of Owners a report updating them on his dealing with the insurance indemnity issue, a meeting with Brewer, the receipt of cost estimates from ATC and an alternative proposal for resolving the matter. Lane Taylor had established from Brewer that he would be prepared to quietly depart on expiry of his lease in three years which was understood to be in October 2017. Lane Taylor had asked ATC to consider whether the life of the floor could be extended for this period. He had an indication from ATC that the cost of the 'top-side' repairs would be $ 27,172 and for demolition and replacement of the slab $32,951 although it was made clear they were not quantity surveyors and that quantity surveyors should be engaged to establish definite costs. Dr Airey's preliminary view was that the floor could be left as it was but that a means of controlling moisture levels would be required and could probably be provided using refrigerated air conditioning.
47 The thrust of the alternative proposal was that legal proceedings would be costly and carried the risk that a sympathetic judge might favour a handicapped lady with limited means (presumably Cheffins), over a group of owners, many with considerable wealth and earning capacity. Lane Taylor opined there had to be a better way and noted any decision would need be made by owners in general meeting. He proposed that a possible compromise might be on the basis that repairs be held over until expiry of the lease in three years, that temporary measures be used to control moisture levels in the meantime and that upon expiry of the lease, the space be 'gutted' and the floor repaired by restoring it to its original state. He suggested all owners share the repair costs but that Cheffins bear the cost of re-fitting out the premises. He advised he would have a discussion with Cheffins and would share his thoughts as outlined but without making any commitments.
48 ATC confirmed in a report dated 10 July 2014, the basis upon which temporary repairs could be conducted.
49 A series of emails were then exchanged in which the Paynes opposed Lane Taylor having any discussion with Cheffins while Lane Taylor defended his views on the benefit of compromising the matter. As the majority of the Council of Owners, being Colin, David and Elizabeth Payne, opposed the proposal, it was not pursued. During this exchange, later meetings of the Council of Owners and various email communications, the original recommendation based on legal advice from Atkinson Legal is referred to as Plan A and the compromise approach proposed by Lane Taylor as Plan B.
50 The matter came to a head at a Council of Owners meeting held on 30 September 2014. The Minutes (LPRT 22 annexed to the witness statement of Lane Taylor dated 28 April 2017 Exhibit 1 Vol 1) reflect somewhat surprisingly, given the position of the Paynes, that a motion was passed which authorised the strata manager (Mr Phillips), Atkinson Legal and the Chair of the Strata Company (Lane Taylor) to meet with Brewer alone, or with Brewer and his legal representative, to ascertain whether Brewer was willing to enter into negotiations.
51 Colin Payne disputes that the motion was passed in the terms stated as it appears he understood views he had put to the meeting had been accepted, resulting in amendment to the motion (see the minutes of the next Council of Owners meeting on 18 February 2015 (LPRT 25 annexed to the witness statement of Lane Taylor dated 28 April 2017 Exhibit 1 Vol 1). The Minutes of the meeting on 30 September 2014 were confirmed at the 18 February 2015 meeting. It is obvious there was genuine confusion about whether any amendment was proposed. Mr Mark Jones refers to this in his witness statement. He recalls Colin Payne speaking in support of a Plan B which he understood was put as an amended motion.
52 Colin Payne states in his evidence that he urged members at the 30 September 2014 meeting to vote to commence work on replacing the slab of Lot 1 without delay (paragraph 28 of his witness statement dated 8 January 2016 Exhibit 1 Vol 2).
53 Colin Payne prepared notes in anticipation of the 30 September 2014 meeting and to which he obviously intended to speak (CP 9 attached to his witness statement dated 8 January 2016 Exhibit 1 Vol 2) in which he referred to the proprietor of the affected lot being required to make good. He also noted that there was only one motion which could be put forward which would allow the matter to proceed without delay and that was a motion that the owner of Lot 1 pay the outstanding accounts of the Strata Company and pay for the 'dental fitout (re-install plastic membrane and steel Rebars) to make the Lot BCA compliant'. He went on to note further that:
THERE IS A PLAN B
Lot 1 is required to pay for and REPAIR the floor.
This would be billed to Lot 1 over a 3 year period by the Strata, coinciding with the end of the lease for the Dentist.
At this time the floor would be REPAIRED.
54 It is concluded that the Paynes voted in favour of the motion authorising discussion with Brewer to ascertain whether he was open to negotiation under a mistaken belief that it had been amended in terms consistent with Colin Payne's Plan B requiring Brewer to pay all costs over a three year period. There was no insistence that the repairs be carried out without delay.
55 At the AGM on 18 December 2014, when as already mentioned, the Paynes were not re-elected to the Council of Owners, they moved motions similar to those passed at the AGM on 26 September 2013 requiring an application to be made to the Tribunal to determine the parties responsible for the repair or replacement of the Lot 1 floor, the party or parties responsible for any loss of income of the tenant of Lot 1 and the ability of the City to approve the works without the approval of the Strata Company in general meeting. A further motion required a determination of the party or parties who would be liable for any loss of income by the current owner. The motions all failed. It can be concluded that the Strata Company had formally moved away from implementation of the September 2013 resolution to commence proceedings before the Tribunal.
56 A motion was passed at the December 2014 AGM that having considered the report of the Chair, opinions expressed by owners and any correspondence tabled that the owners direct the Council of Owners on the action to be taken and the authority to fund costs as might be incurred from provisions within the Administration Fund, and such other sources as the owners might determine including from the Reserve Fund. The Chair's report (Exhibit 8) outlined on the Lot 1 issue that the ATC report had informed the Council of Owners of the extent and nature of damage, but it had not been possible to gather all information required as to costings, alternatives for repair and the best course of resolution.
57 The differences between the Paynes and the Council of Owners and in particular the Chair Lane Taylor escalated after the December 2014 AGM.
58 Quotations had been obtained for a complete and permanent repair involving a full removal and replacement of the floor reinforcing bars of $70,000 plus GST and for the top-side repair of $20,670 plus GST. Further consideration of the issue was deferred at the meeting of Council of Owners on 25 March 2015 to the next meeting on 29 April 2015 to enable a council member to prepare a summary for the Council of Owners and to allow a number of new members to study the correspondence on the issue. The issue was discussed at the 29 April 2015 meeting but all that was resolved was that the secretary pursue the obtaining of a further quotation. The Minutes of the next meeting make no mention of any further quotation but it was resolved to obtain legal advice from Murfett Legal Pty Ltd (Murfett Legal) on the specific question of whether a claim against the contractor concerned would be time barred.
59 In the meantime a further issue was developing in relation to the way in which the Council of Owners was dealing with air conditioning issues. Colin Payne states at paragraph 33 of his statement of 16 January 2016 that the Chair had made a misleading statement at a special purpose Council of Owner's meeting on 21 May 2015 reminding members that the air conditioners were common property. He also refers to a belief that members with conflicts of interest were voting in relation to that issue.
60 Legal advice was received from (Murfett Legal) by email dated 15 August 2015 and then on 26 August 2015 from Mr Joel Yeldon of counsel. Murfett Legal opined the most obvious claim, was against Cheffins, but a number of issues were raised requiring further instructions. Mr Yeldon's advice was unequivocal that the claim would lie against the lot proprietor who caused the damage, not a successor in title, but no view was expressed about whether the claim might be time barred in the absence of full instructions on that issue. (Written advice by letter dated 16 January 2016, was subsequently obtained from Mr Matthew Curwood, of counsel, to the effect that the claim against Brewer would not be defeated by any limitation period but consideration would need to be given to whether Brewer remained bound by the by-laws.)
61 The Paynes commenced these proceedings on 2 September 2015.
62 On 30 October 2015, a further special purpose Council of Owners meeting was held which Brewer was invited to attend and did attend. A report prepared by Lane Taylor was read summarising the pertinent facts relating to the Lot 1 issue, the legal advice received that Brewer was liable, setting out the temporary fix option to control humidity levels allowing the continued use of the premises, as opposed to the complete gutting of the premises for a permanent repair and concluding if Brewer would not strike a workable arrangement, the only alternative was litigation. Brewer advised he understood the contents of the Chair's report, would obtain legal advice and 'report back' to the Council of Owners by 15 November 2015.
63 At the 2015 AGM held on 14 December 2015, the Chair's written report was received and addressed by the Chair Lane Taylor. The report referred to the legal advice that a claim seemed to lie against Brewer, the meeting with Brewer, and that since then there had been exchanges of information with Brewer's legal representatives. Under crossexamination, Lane Taylor stated Brewer disputed liability. It is not clear when that position was reached. Colin Payne states that he attempted to raise questions about Lot 1 options for rectification and cost sharing but that the Chair prevented any discussion saying he was doing so on legal advice. There is no reference to this exchange in the Minutes of the meeting. However, it is likely that an attempt would have been made to discuss the issue as two further reports were obtained from ATC dated 18 January 2016 and 9 February 2016 addressing the proposed form of remediation in the latter of which specific reference is made to enquiries by Colin and David Payne about whether the 'temporary measures' would meet the functional and performance requirements of the National Construction Code (NCC). Colin Payne's evidence in this regard is accepted.
64 By this time the dispute between the parties had taken on a life of its own, driven by the matter being before the Tribunal and the need to comply with its processes. The application for the appointment of an Administrator was heard on 16 February 2016 and a written decision delivered by Senior Member Spillane on 21 July 2016. During this period, a dispute had arisen in relation to levies being charged and over access to inspect documents. As outlined above, the access to documents issue was resolved by the Tribunal.
65 An AGM was held on 3 November 2016. A report from the Chair was received and addressed. The report outlined the option for Plan A:
closing of the Dental Practice, the total gutting of the existing space including the removal of the bulk of the concrete floor, replacing the now damaged plastic membrane and replacing of the slab
or Plan B, involving a topside seal.
66 Further, a cost sharing proposal was set out that the all up cost for Plan B, then estimated to be $70,135 plus GST, be shared equally between the Strata Company, Brewer and Cheffins and that the 2017 Budget included an allowance for this of $25,000 plus GST. The Minutes of the meeting reflect that the budget was approved, that it was resolved to proceed with the repairs of Lot 1 and that the Strata Company authorised payment of the one third share of the costs of $25,000 plus GST. Mr Gary Phillips, as proxy for the Paynes, spoke against the resolution to proceed with the repairs and argued that the outcome of the proceedings before the Tribunal should be awaited (see the Minutes of the 3 November 2016 meeting LPRT 36 annexed to the witness statement of Lane Taylor, dated 28 April 2017 Exhibit 1 Vol 1 and the transcript of the recording of that meeting CDP 32, annexed to the witness statement of Colin Payne Exhibit 1 Vol 2). The Chair's report also reflects that the City had accepted Lane Taylor's proposed Plan B as a workable solution.
67 The transcript of the AGM reflects that Lane Taylor, in response to questioning from Mr Phillips about whether Plan B was a temporary fix, responded that 'there is nothing we', presumably meaning persons representing the Council of Owners, 'have said, or agreed to' which says this is a permanent fix, or that, in effect, any rights against any person associated with the damage to the common property floor of Lot 1 would be waived.
68 Notwithstanding this response there is no evidence that any further repairs were planned to be carried out after Plan B had been implemented. Because of the issues raised by David and Colin Payne about whether the topside repair would meet NCC requirements, further advice had been sought from and provided by ATC in the report dated 8 February 2016. That advice referred to temporary measures to control moisture levels until the lease expired. It was then intended that the topside repairs recommended in their report of 12 March 2014, be carried out 'to return the slab to full code compliance'. The 8 February 2016 report addressed only NCC compliance in relation to damp and concluded that while the building itself would comply ATC could not certify that other aspects such as electrical would do so.
69 The evidence does not establish whether moisture levels had been experienced requiring any attention from the Strata Company, Brewer or Cheffins. While the City appeared content to await further information from the Strata Company about when the repairs would be carried out because it was satisfied there were no structural issues or health issues, there is evidence that somehow the Worksafe Western Australia Commissioner (Commissioner) became aware that there were two sections of the floor of Lot 1 which the Commissioner considered constituted trip or fall hazards. An improvement notice was issued to Brewer on 23 December 2016. Brewer advised Lane Taylor he would ensure the floor surface was made even so as to comply with the notice by removing any lumps and replacing the vinyl covering where necessary.
70 It is however evident that Lane Taylor had remained concerned about the issues raised about NCC compliance of the topside repairs recommended and prior to the AGM on 3 November 2016, had caused the matter to be specifically raised again with ATC. By email dated 20 October 2016, Murfett Legal requested ATC to review the proposed scope of remedial work and to outline the longevity of the remedial works, in what sense they might be regarded as temporary, and the degree, if at all, that the proposed works do not comply with the applicable NCC standards. By email dated 8 December 2016, Dr Airey advised that the proposed repairs could not meet the requisite durability standard such that there be a minimum period of 40 years to first maintenance.
71 Lane Taylor communicated to Brewer and Cheffins that the topside repairs could not be regarded as a permanent fix. They both indicated they would not contribute to the topside repair if it was not permanent fix.
72 This was reported to a meeting of the Council of Owners on 20 January 2017. Lane Taylor suggested that the Strata Company should shift to achieving a cost sharing agreement for a full slab replacement. He reported that the lease would come to an end in March/April 2018 when it was understood Brewer would vacate. Lane Taylor's evidence is that he informed the meeting that the repairs should be done at a time and in a manner so as to minimise as far as possible the economic loss, disturbance and inconvenience to any affected owners but any decision would have to be made by owners in general meeting and the Paynes remained opposed to any cost sharing with Brewer and Cheffins with the dispute remaining before the Tribunal.
73 In February 2017, Lane Taylor met with a representative of the builder who had provided the previous quotations referred to and on 17 March 2017, a quote for the full floor replacement but excluding removal of furniture and fittings of $69,375 plus GST.
74 On 21 March 2017, ATC confirmed the brick walls within the tenancy and the slab could be removed without creating any structural issues but recommended a methodology to avoid having to replace the reinforcing bars or mesh because of the practical difficulty of getting it into the basement.
75 A further quotation was received in August 2017 specifically adjusting the concrete mix as per the ATC report of 21 March 2017 in the sum of $79,573 plus GST (Exhibit 4). The quote excludes removal of furniture and fittings. A further quote dated October 2017 is for $88,635 plus GST but includes removal of fixed furniture and fittings.
76 As at the date of Lane Taylor's witness statement being 28 April 2017, he stated that negotiations with Brewer and Cheffins were continuing.
77 On 20 October 2017 an in principle agreement was reached between the Council of Owners and Cheffins providing for her to contribute $25,000 inclusive of GST towards the costs of the repair of the floor and slab (Exhibit 3). The repairs are to be carried out from 4 May 2018. The agreement is subject to the approval of the Strata Company (presumably this means in general meeting) and subject to Brewer not exercising his right to re-new the lease.
78 Colin Payne states, as already mentioned, that Lane Taylor is intent on pushing an outcome which favours Brewer and Cheffins over other owners. He also makes reference to the statements by Lane Taylor that there is a risk a judge would favour a handicapped person with limited means (understood to be a reference to Cheffins). This is corroborated by Mr Mark Jones in his witness statement who also refers to a statement to that effect made by Lane Taylor in an email dated 9 July 2014 (LPRT 13 annexed to the witness statement of Lane Taylor dated 28 April 2017) to which reference has been made earlier. Colin Payne states that Lane Taylor also said that 'he loved' Cheffins and would not burden her with the costs. Colin Payne states he understood from this that Lance Taylor had a platonic friendship or fondness for Chiffins.
Consideration of Issue 3
79 A strata company's obligation to maintain, repair or replace common property has been held to be mandatory and unqualified: see Brosolo and Council of Owners of 25 St Leonards Strata Plan 352 [2008] WASAT 285 (Brosolo). The purpose of s 35(1)(c) of the ST Act is that maintenance be carried out with the object of continuing the statutory standard . It does not impose an absolute obligation so that the Strata Company must at least be aware of the damage or deterioration of the common property: see Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181.
80 If the duty is not absolute or strict in the sense that the Strata Company is in breach of its statutory duty as soon as the common property is not in good repair, it necessarily follows that there must be an assessment of whether or not the strata company has unreasonably delayed carrying out the repair. For instance, can a strata company be in breach if it takes prudent steps to investigate and determine the appropriate remedial method even if that causes some delay in effecting the repairs? Is a strata company in breach of that duty if it chooses to wait a period of time for a preferred contractor to carry out the repairs if there is reason to believe that contractor will be more likely to do the work to a satisfactory standard than other contractors? No doubt the correct answer will be informed by consideration of safety and security and whether there are any circumstances which make the need for repair or maintenance urgent. Support for an affirmative conclusion to the questions posed is to be found within s 35(1)(b) which obliges the Strata Company to control and manage the common property for the benefit of all the proprietors. It is common that strata companies have to prioritise and establish a programme for maintenance works to the extent that many set up five year programmes. Maintenance may have to be prioritised having regard to urgency and safety considerations: see Brosolo.
81 When it is necessary for the Tribunal to assess the conduct of a strata company it should not interfere with the decisionmaking process unless satisfied that there is no good sense or logic to support the approach taken. In this regard, see the principles discussed in The Owners of Mandurah Terrace Apartments Strata Plan 17133 and Russell [2009] WASAT 1, which although stated in a different context are apposite. It is necessary therefore that the Paynes make out a case that the Strata Company has acted contrary to these principles. Before turning to the facts to assess whether or not that case is established, regard should be had to relevant statutory provisions and by-laws.
82 Schedule 1 by-law 16.1 defines 'Proprietor':
to mean the proprietor from time to time of a Lot and the Proprietor's successors in title, personal representative, permitted assigns and transferees or registered mortgagee in possession.
83 This definition of 'Proprietor' differs from the definition of 'Proprietor' set out in s 3 of the ST Act which defines 'Proprietor':
to mean the person who is for the time being registered under the Transfer of Land Act 1893 as proprietor of an estate in fee simple or an estate for life in a lot.
84 Section 42 of the ST Act permits a strata company to make by-laws not inconsistent with the ST Act.
85 Schedule 1 by-law 19.2 provides:
19.2 In causing or allowing any structural alterations building or associated works of any kind to be carried out on his Lot, a Proprietor shall ensure:
19.2.1 …
19.2.2 …
19.2.3 …
19.2.4 that any Common Property damaged as a result of conducting the works is cleaned and restored to the same state and condition as it was prior to the works commencing;
19.2.5 …
19.2.6 …
19.2.7 …
the Strata Company shall have authority to enter upon any Premises at all reasonable times, by its agents or contractors, having regard to the urgency involved, to carry out such repairs or renovations to Common Property as may be necessary.
87 The definition of Premises (Schedule 1 by-law 16.1) includes a Proprietor's Lot.
88 Schedule 1 by-law 27.1 provides:
Should any damage be caused to any part of the Common Property by any Proprietor or Proprietor's invitees then the Proprietor shall be responsible for the cost to the Strata Company of making good such damage.
89 Section 42(6) of the ST Act provides:
Without limiting the operation of any other provision of this Act, the bylaws for the time being in force bind the strata company and the proprietors and any mortgagee in possession (whether by himself or any other person) or occupier or other resident of a lot to the same extent as if the bylaws had been signed and sealed by the strata company and each proprietor and each such mortgagee, occupier or other resident respectively and as if they contained mutual covenants to observe and perform all the provisions of the bylaws.
90 Section 83 of the ST Act limits the parties who may apply to the Tribunal in the following terms:
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, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the bylaws 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.
91 Finally, it should be noted that s 37(1)(f) of the ST Act empowers a strata company, where it considers it necessary, to effect a compromise of any action for the recovery of money due to the strata company.
92 To the extent that the definition of 'Proprietor' has been extended by the by-laws, and references are made in the by-laws to the Proprietor with that extended meaning, a question arises whether the by-laws are to that extent inconsistent with the ST Act and therefore invalid. Section 83 and other provisions of the ST Act referring to the Proprietor of a lot, do so with a meaning which restricts the Proprietor to the proprietor registered from time to time as the proprietor of an estate in fee simple.
93 This impacts on any consideration of the liability of Brewer for damage to the common property floor slab relating to Lot 1.
94 At the same time, Brewer as an occupier of Lot 1, is bound by the bylaws which may impact on his ability to complain about any action by the Strata Company to enter the premises and carry out repairs at least while he maintains that status.
95 The advice received by the Strata Company to date has not directly addressed these issues.
96 It is not the function of the Tribunal to make any determination of liability of either Chiffins or Brewer in these proceedings which are aimed at obtaining orders requiring the Strata Company to commence proceedings for recovery of repair costs if they do not engage contactors to carry out the repairs within a 28 day period and in any event, for associated investigation costs. It is at least necessary that the Tribunal conclude that there is a case against them with reasonable prospects of success such that it should exercise its discretion to resolve the dispute between the parties by making orders in substance as sought.
97 The Strata Company resolved at the September 2013 AGM that proceedings be commenced in the Tribunal to determine who was responsible for the repairs and any loss of income claim by Brewer.
98 As found above, the motion was moved by Rebecca Kiriakidis, the owner of Lot 16, and seconded by Elizabeth Payne. The motion accords with the course proposed by Colin Payne at the meeting of the Council of Owners held on 18 April 2013. The obvious purpose of the motion was to avoid the Strata Company first incurring the cost of the remedial work and only thereafter attempting to pursue a cost recovery action.
99 The resolution was passed without the benefit of legal advice, which when received in April and November 2013 from Mr Atkinson was to the effect that proceedings before the Tribunal was not the solution because of its limited jurisdiction to award monetary compensation only up to $1,000 (s 84 of the ST Act).
100 As found above, rather than commence proceedings before the Tribunal, the Council of Owners followed a course of further investigation in relation to costings and instructed Atkinson Legal to give notice of possible proceedings to Cheffins and Brewer as well as consider particular proceedings identified by Mr Atkinson and also concluded that the matter would need to go back to owners in general meeting (Council Of Owners meeting 25 March 2014). By July 2014 it had been established that the damage to the floor had no impact on the structural performance of the building and that the moisture levels could be controlled until expiry of the lease for Lot 1.
101 Although the Paynes are highly critical of the current Council of Owners for their alleged failure to cause the Strata Company to discharge its statutory obligations, it is noteworthy that Colin Payne provides no evidence of any further steps taken by or on behalf of the Strata Company after May 2012 until February 2014 when he again attended Lot 1 with ATC engineers. The Paynes were all on the Council of Owners during this period up to the AGM in December 2014 when the number of councillors was reduced from seven to five and none of them were re-elected.
102 From July 2014, the Council of Owners and in due course, the owners in general meeting proposed and followed a course of negotiation with Brewer and Cheffins with a view to agreeing a time when repairs could be carried out with a minimum of inconvenience and loss of income and a basis upon which the costs of repair (but not engineering costs) would be shared. An attempt by the Paynes to have the Strata Company follow the course resolved at the 2013 AGM was rejected when motions to the same effect failed at the AGM held on 18 December 2014.
103 As found above, a motion was also passed at the December 2014 AGM that having considered the report of the Chair, opinions expressed by owners and any correspondence tabled that the owners direct the Council Of Owners on the action to be taken the effect of which was to restrict the authority of the Council of Owners to resolve the Lot 1 issue (s 44(1) of the ST Act).
104 The Strata Company has persisted with its approach to a proposed compromise with Brewer and Cheffins. The approach has been based upon engineering advice and legal advice relating to possible claims against Brewer and Cheffins and counter-claims from them. The risks associated with any such litigation are real and obvious. There is no legal cause of action identified against Cheffins. No basis of any claim against her has even been submitted on behalf of the Paynes. There are commercial pressures arising from her obvious desire to reach an agreement which avoids disruption and any possible loss of income claim by Brewer. The leverage that the Strata Company has to procure an agreement with Brewer may well depend on similar factors including the risk (for Brewer), that absent an early agreement, the Strata Company may be advantaged by entering and carrying out repairs while Brewer remains bound by the by-laws.
105 The Paynes, in the Tribunal's view, and contrary to the position reflected in their substituted SIFC dated 11 April 2017, have not wished that the repairs be undertaken as an immediate priority to avoid as they considered to be the case that the Strata Company would be in breach of its obligations under s 35 of the ST Act.
106 Colin Payne's evidence that he urged the Council of Owners at the 30 September meeting to vote to commence work on replacing the slab of Lot 1 without delay (paragraph 28 of his witness statement dated 8 January 2016 Exhibit 1 Vol 2) is not accepted. It is inconsistent with the notes which he prepared in anticipation of the meeting in which he referred to the proprietor of the affected lot being required to make good. He recorded in that note that there was only one motion which could be put forward which would allow the matter to proceed without delay and that was a motion that the owner of Lot 1 pay the outstanding accounts of the Strata Company (understood in context to mean those incurred in investigating the issue) and pay for the 'dental fit out (reinstall plastic membrane and steel Rebars to make the Lot BCA compliant'. Even the Plan B to which he referred in the note contemplated that Lot 1 pay the costs in instalments over three years so that the funds were available at the end of the lease to carry out the repairs.
107 An insistence on the Strata Company proceeding immediately with the repairs before the funds for the repairs had been provided by the responsible proprietor of Lot 1 is also entirely inconsistent with the approach taken by the Paynes prior to September 2014. That approach was still unchanged as at 3 November 2016 AGM when Mr Phillips, as proxy for the Paynes, addressed a motion (moved by a Ms Williamson and seconded by Lane Taylor), that the Strata Company proceed immediately with the repairs although linked with a cost sharing arrangement. Mr Phillips expressed the view that the Strata Company should await the decision of the Tribunal (see the Minutes of the 3 November 2016 meeting LPRT 36 annexed to the witness statement of Lane Taylor dated 28 April 2017 Exhibit 1 Vol 1 and the transcript of the recording of that meeting CDP 32 annexed to the witness statement of Colin Payne Exhibit 1 Vol 2).
108 Further, the original orders sought when the proceedings were commenced before the Tribunal on 2 September 2015, required an order to be made firstly against Brewer and Cheffins for them to undertake the repairs.
109 Finally, it is inconsistent with the evidence of the Payne's witness Mr Mark Jones who thought an amended motion proposed by Colin Payne had been considered at the meeting of the Council of Owners on 30 September 2014 relating to Colin Payne's Plan B a course which would have resulted in a three year delay before repairs were carried out.
110 The Paynes do not trust Lane Taylor and others if not all on the Council of Owners. The difficulties which the Paynes experienced in obtaining access to and inspection of documents has done nothing but add to that mistrust. Access to legal advice, in which there was a joint privilege and to which the Paynes were entitled, was not helped by legal advice being given in the same documents in relation to the conduct of the proceedings for which the Strata Company was entitled to claim privilege and refuse inspection. This meant that any determination of what the Paynes were or were not entitled to inspect would be time consuming and expensive for the Strata Company. The upshot of all of this has resulted in significant legal costs for all involved because the Paynes' perspective on this issue and other issues became clouded by suspicion and lead to these proceedings.
111 The Tribunal considers that the Strata Company has at all times acted prudently and that there is a sensible and logical basis for its approach to an attempt to compromise the matter. There is no safety, health or other reason which requires that the repair be urgently carried out. It is in the interests of all the proprietors that a compromise acceptable to them, be reached. If no final and binding compromise is reached they will then have to decide in general meeting against whom any proceedings should or should not be commenced. The Strata Company is of course obliged to carry out the repairs to the common property floor but in the absence of any structural, safety or other issue compelling the repairs to be carried out immediately, the timing must be dependent on what is in the interests of proprietors having regard to all the circumstances.
112 The power to compromise a cost recovery action must necessarily empower the Strata Company to compromise a cause in action prior to actual commencement of proceedings.
113 Whatever friendship Lane Taylor has with Chiffins, it has not affected the approach of the Strata Company in any detrimental way. To the contrary, the present agreement in principle with Chiffins is very much in the best interests of the Strata Company.
114 A final issue raised by the Paynes is whether the use of Lot 1 as a dental surgery is a permitted use under the applicable planning scheme. There has been no evidence produced to establish that approval for a change in use from a restaurant to a dental surgery was not given by the City. If there had been evidence to that effect, it is clear that the City has not been concerned, that the change in use has been continuing for approximately 13 years, and there is no reason to believe that approval could not be obtained. It is not an issue that would therefore alter the Tribunal's view that a compromise is beneficial, although it might improve the prospect of a successful defence of any claim by Brewer for loss of income.
115 The answer to the question posed as issue 3 is that the Strata Company is able to pursue a compromise with Brewer and Chiffins and is not obliged to sue them for the full cost of repair and associated consultant's costs.
Issue 4: Has the Strata Company arguably erred in treating the Hitachi air conditioning system which serviced Lot 16 and the split air conditioning system servicing lot 7, their current replacement systems, and other split air conditioning systems, as being common property?
116 Lane Taylor researched the records of the Strata Company and spoke to persons likely to have some knowledge of the history of the air conditioning. The details are set out in a letter dated 14 October 2015 addressed to the Strata Company Manager (LPRT 49 to his witness statement at 206 of Exhibit 1 Vol 1). He provided some further clarification under crossexamination. All his evidence on this issue is accepted.
117 Three separate multistorey buildings were in existence at the time of registration of strata plan 39733 on 27 March 2001. Air conditioning was provided by a non-refrigerated water loop system. At some time after October 2002, a Hitachi air conditioning unit of the type installed on the roof of the building, became available to customers. It is likely the Hitachi unit was installed shortly after October 2002. It is a very large unit bolted to the roof.
118 The Hitachi system has recently been replaced and the cost has been borne by the Strata Company. The Hitachi unit serviced part of level 3, primarily Lot 16, but also common property on level 3. It supplemented the water loop system. Lot 16 was sold to new owners (Midland Employment and Training Services Inc.) (Midland Employment) in August 2002. Lane Taylor records in his letter that David Payne had recalled that the owner of Lot 16 had installed the Hitachi air conditioner. No further details are given and the Paynes have provided no evidence relating to the installation of the air conditioner.
119 Information gained from former employees and one current employee of Midland Employment, identified in Lane Taylor's above letter, suggest that no significant air conditioning expenses were incurred by their employer. The installation would have been a fairly major undertaking with a crane being needed to lift the unit onto the roof. The definition of the boundaries of lots as described on the strata plan refers to the lower surface of the ceiling as constituting the upper boundary of the lot. The roof is common property. Any ducting and vents into Lots are therefore also common property.
120 Lane Taylor's review of all AGM Minutes and Annual Strata Manager Reports provided no useful information. The Strata Manager Report for the AGM held on 30 June 2008 referred to one major air conditioner replacement in Lot 16 '(approved by Owners Payne and Patterson)'. But earlier in his letter Lane Taylor set out the ownership history of Lot 16 which in 2008 was still owned by Midland Employment (by then re-named). It is unlikely that a very large air conditioner which would obviously be of considerable value would be manufactured in 2002 but only sold and installed in 2008. It raises as a possibility that the Strata Manager's Report referred to the wrong lot number.
121 In the absence of any exclusive use by-law relating to the Hitachi unit it would have appeared to Midland Employment that the Strata Company had installed the Hitachi air conditioning system and would be responsible for future maintenance. Any prospective purchaser of Lot 16, or of any other lot, examining the Strata Plan and Management Statement by-laws would come to the same conclusion. The Strata Company's subsequent conduct in regularly maintaining the system would arguably give rise to an estoppel preventing any contrary contention.
122 A split system air conditioner was installed to service Lot 7 which is in part of what is described as the 'old building' which has never been serviced by the water loop system. It is unlikely that part of the building was air conditioned and part not, at the time of registration of the strata plan. The split system was replaced at the cost of the Strata Company in 2015. According to the organisation responsible for maintaining the air conditioning within the strata building, the Lot 7 system was between 15 and 20 years old (understood to be at the time of replacement). There is no evidence to suggest that this system has always been anything other than common property. In addition, in the absence of an exclusive use by-law anyone considering the strata plan and management statement by-laws would reasonably conclude that the system was owned by the Strata Company which would be responsible for future maintenance and in due course replacement.
123 Since 2002, the ageing water loop system has had difficulty meeting the heating and cooling demands of the building and various owners have caused separate split air conditioning systems to be installed to supplement the water loop system. While most owners have borne the initial cost, maintenance expenses have been paid by the Strata Company. In at least two instances in respect of Lots 4 and 6, resolutions were passed that the owners would bear installation and maintenance costs. An inconsistent approach is unacceptable, and at some time is likely to lead to dispute and to challenge before the Tribunal.
124 There may be a logical reason for a different approach, for example, if permission to install a new air conditioner is due to a need arising for a reason personal to an owner as opposed to a need arising simply because of the reducing capacity of the water loop system. Depending on the particular facts it may well be possible to rationalise that this should be a common property expense borne by the Strata Company, if it has the effect of avoiding what might be more expensive maintenance or even replacement costs of the water loop system.
125 The Strata Company has recognised the need to address this problem. The Minutes of the AGM held on 17 October 2017, reflect that an audit of the air conditioners is to be carried out to determine which systems are not the subject of any ownership claim by a Lot owner. The results of that audit will require examination by the Strata Company to determine whether or not there is a logical basis for the Strata Company to distinguish between the various systems installed. All systems are likely to be installed on common property and should either be accepted as common property for which the Strata Company is liable in respect of maintenance or should be the subject of an appropriate s 42(8) by-law.
126 The decision made in respect of each air conditioning system may then lead to a dispute between the Strata Company and the affected lot owner or other lot owners who consider that the Strata Company should not accept maintenance responsibility in respect of a particular system. If so, that dispute can be dealt with by the Tribunal, based on specific evidence. The Strata Company has submitted that one of the difficulties it has with the orders sought requiring it to commence proceedings to determine whether or not the air conditioning systems are common property is that it has no interest in establishing that any of the air conditioners are common property. It has put forward the best evidence available to it but the Paynes have not put forward any contradiction of that evidence other than the limited statement concerning Lot 16 made by Colin Payne.
127 The answer to the question posed by issue 4 is that the Strata Company has not arguably erred in its treatment of the Hitachi Lot 16 air conditioner system and Lot 7 split air conditioner system as common property. To the contrary, on the evidence before the Tribunal the Strata Company has acted correctly in respect of these air conditioning systems. There is insufficient evidence on which to find that the Strata Company has arguably erred in respect of the other split air conditioning systems.
Issue 5: If the answer to 4 is yes, should the Strata Company be ordered to commence proceedings before the Tribunal to determine whether such systems and all other split system air conditioners are common property or not?
128 This issue falls away in view of the conclusion reached in respect of issue 4.
Issue 1: Does the Tribunal have jurisdiction to make the orders sought by the Paynes firstly, for the recovery of engineering, technical and legal costs associated with the damage to the common property floor slab of Lot 1 and secondly, to commence proceedings before the Tribunal to determine ownership of air conditioning plant?
129 The orders sought are set out in Annexure A attached to these reasons for decision.
130 The Strata Company submits that the Tribunal has no jurisdiction to make the orders sought:
i) in order 2.3 for the recovery from Brewer and ChiffIns of monies expended to-date on engineering and other technical reports; and
ii) in order 4 that the Strata Company make application to the Tribunal to determine whether the stated air conditioners are common property.
131 The basis of the submission is that s 83 enables the Tribunal to make an order for the settlement of a dispute or rectification of a complaint, with respect to the exercise or performance of or the failure to exercise or perform a power, authority duty or function conferred or imposed by the ST Act. But it is submitted that no decision has been made not to recover costs, nor has any application been made for the Strata Company to exercise its power to do so which might result in a deemed refusal of the exercise of a discretion to do so. Further, that in relation to the air conditioners the order sought does not settle a dispute or rectify a complaint with respect to the exercise or failure to exercise or perform any such power, authority, duty or function.
132 Section 83(2) and (3) provide as follows:
Where a strata company has a discretion as to whether or not it exercises or performs a power, authority, duty or function conferred or imposed on it by this Act, it shall be deemed to have refused or failed to exercise or perform that power, authority, duty or function only if it has decided not to exercise or perform that power, authority, duty or function.
For the purposes of subsection (2), where
(a) application is made to a strata company to exercise a discretion referred to in that subsection; and
(b) the strata company does not, before the expiration of the period of 2 months that next succeeds the making of the application;
(i) exercise or perform a power, authority, duty or function in accordance with the application; or
(ii) inform the applicant that it has decided not to exercise or perform the power, authority, duty or function in accordance with the application,
the strata company shall be deemed to have decided not to exercise or perform the power, authority, duty or function.
133 At the Council of Owners meeting held on 30 September 2014 Colin Payne spoke to his notes CDP 9 to which reference has already been made. The notes reflect and he therefore would have put to the meeting that the owner of Lot 1 should be required to pay all outstanding accounts, as distinct from the repair costs. There was no amendment moved to the motion before the meeting authorising initial negotiations with Brewer but the Council of Owners, charged with the management of the Strata Company, subject only to any restriction imposed or direction given in general meeting, were in no doubt what the position of Colin Payne was, and would have understood that was the position of all the Paynes.
134 When one has regard to the facts found in relation to the Lot 1 floor issue, it is clear that the Strata Company had charted a different course to that desired by the Paynes. From September 2014, the Council of Owners favoured Lane Taylor's compromise approach. The effect of motion five, passed at the December 2014 AGM read with the Chair's report (Exhibit 8), was to authorise the Council of Owners to negotiate, gather all required costing information and then seek approval from all owners at an Extraordinary General Meeting of whatever course was finally recommended.
135 It can be inferred therefore from the authority granted at the December 2014 AGM that the Strata Company had decided at that point that it would not immediately commence proceedings against Brewer or ChiffIns while it pursued a compromise in relation to the timing of the repairs and the repair costs. The parties were in dispute in that respect.
136 Section 83(3) above is no more than a deeming provision which operates in accordance with its terms. It is not necessary to deem that there has been a decision not to take (immediate) action for the recovery of the associated costs because it is open to find, and the Tribunal does find, that the Strata Company had in fact decided on a different course to that advocated by the Paynes. The parties are in dispute on that issue and the Tribunal has jurisdiction to make orders in settlement of the dispute.
137 In relation to the air conditioners, the Strata Company has considered it appropriate to raise levies for the replacement of the Hitachi system and according to the evidence of Lane Taylor, has borne the maintenance costs of the majority of the various split air conditioning systems installed. It is obvious that a decision has been made to treat the air conditioners concerned as common property. However, there is no evidence demonstrating that the Paynes took issue with the decision prior to commencing these proceedings. At the time of commencement of the proceedings, the Tribunal did not have jurisdiction to make an order in settlement of any dispute. There is nothing that would bring the matter within the circumstances which would permit a finding that there is a deemed refusal or failure to exercise, or perform a power, authority, duty or function conferred or imposed by the ST Act. The Tribunal therefore does not have jurisdiction to make the orders sought in relation to the air conditioners.
138 The answer to the questions posed by issue 1 is that the Tribunal:
i) does have jurisdiction to make the relevant orders sought in relation to the recovery of costs associated with the repair of the Lot 1 common property floor slab;
ii) does not have jurisdiction in respect of the orders sought in relation to the air conditioners.
Issue 6: Are the Paynes entitled to an order that the Strata Company refund to them levies paid in respect of the costs of these proceedings, and if so should such an order be made?
139 The only basis upon which there could be an entitlement to a refund of levies paid by the Paynes is under s 81(11) of the ST Act which provides that if an order is made against a strata company on the application of a proprietor of a lot, the strata company may not levy in respect of that lot a contribution towards the expenses of the strata company in relation to the application.
140 The effect of the Tribunal's findings in respect of each of the above issues is that no order will be made in favour of the Paynes with the result that they are therefore not entitled to an order for repayment of such levies.
Conclusion
141 For the above reasons the Tribunal has jurisdiction to make the orders sought save in relation to the air conditioner issue. If the Tribunal is wrong in its conclusions in respect of jurisdiction the application in any event fails on the merits.
142 These proceedings have not been in the interests of any of the parties and will not have aided the successful resolution of the Lot 1 slab issues. A great deal of time has been wasted and significant legal costs incurred by all parties. Lane Taylor, and the Council of Owners, although criticised by the Paynes, have obviously committed a very considerable time to the management of the Strata Company on a voluntary basis and have been shown to have acted prudently and in the interests of all proprietors. No doubt the Strata Company acted on legal advice in refusing inspection of documents on the grounds of legal professional privilege but that refusal fed the suspicions already held by the Paynes.
143 The parties would do well to bring an end to the hostility which exists. Open communication will assist.
Orders
An order will issue in the following terms:
1. The proceedings against the first, second and third respondents are dismissed.
I certify that this and the preceding [143] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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