Pitsikas and Grimes - [2009] WASAT 80

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: PITSIKAS and GRIMES [2009] WASAT 80

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 21 APRIL 2009

DELIVERED : 29 APRIL 2009

FILE NO/S: CC 104 of 2009

BETWEEN: MURRAY FREDERICK PITSIKAS
Applicant
AND
DAVID GRIMES
First Respondent
OWNERS OF STRATA PLAN 124, BROADWAY, NEDLANDS
Second Respondent

Catchwords:

Strata title Unauthorised installation of airconditioner - Request for airconditioner to be removed - Noise - If airconditioner was installed by previous owner, what obligations face the new owner - Removal of airconditioner - Repair damage caused to common property

Legislation:

Strata Titles Act, 39 of 1966 (WA)
Strata Titles Act 1985 (WA), s 35, s 79(2), s 83(1)
State Administrative Tribunal Act 2004 (WA), s 48

Result:

The application succeeds
Mr Grimes must remove the air-conditioner no later than 15 June 2009 and make good any damage that has been caused to common property

Category: B

Representation:

Counsel:

Applicant:     Selfrepresented
First Respondent           :     Selfrepresented
Second Respondent      :     Ms C Trott (Representative)

Solicitors:

Applicant:     Self-represented
First Respondent           :     Self-represented
Second Respondent      :     Owners of Strata Plan 124, Broadway, Nedlands

Case(s) referred to in decision(s):

Arasi and The Owners of Beverly Court [2005] WASAT 197
Squelch and Brooklea Nominees Pty Ltd [2005] WASAT 198
Stanley and Owners of Waterloo Heights Strata Plan 4192 [2009] WASAT 55
The Owners of Habitat 74 - Strata Plan 222 and Betteridge [2005] WASAT 25
Whittick and Ridley [2005] WASAT 134

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The dispute concerned a request by Mr Pitsikas for Mr Grimes to remove an air-conditioner that was installed on common property. The airconditioner was placed against the outside wall of Mr Pitsikas' unit and his bedroom is situated on the other side of the wall. The strata company supported the application for the air-conditioner to be removed.
Mr Pitsikas and the strata company contended that the airconditioner was installed on common property without approval of the strata company and that it was noisy and caused unacceptable vibration. The location of the airconditioner is such that it is clearly audible in the bedroom of Mr Pitsikas to such an extent that he cannot sleep at night. A previous tenant of Mr Pitsikas confirmed that the airconditioner was clearly audible in the bedroom and that it was difficult to sleep at night when the air-conditioner was operative.
Mr Grimes contended that the air-conditioner was installed by a previous owner and that he could therefore not be held liable for the removal thereof. He also questioned whether it was as noisy as was suggested by Mr Pitsikas. He further demanded that the strata company provided evidence that no previous approval had been given for the air-conditioner to be installed. He also referred to other air-conditioners that had been installed against the outside walls of the scheme and contended that he is being discriminated against.
The Tribunal emphasised that the underlying principle of management…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pitsikas and Grimes

Details

AGLC: Pitsikas and Grimes [2009] WASAT 80
Case: [2009] WASAT 80
Decision Date: 29 APRIL 2009

CaseChat Overview and Summary

In the case of Pitsikas and Grimes, the dispute was between two owners of strata titles, focusing on the unauthorised installation of an air-conditioner on common property and the subsequent noise it caused. The matter was brought before the court to seek an order for the removal of the air-conditioner and compensation for any damage done to the common property. The defendant, Mr Grimes, had installed the air-conditioner, which was located on the common property of a strata titled property. The plaintiff, Mr Pitsikas, sought an order for the removal of the air-conditioner and compensation for any damage caused to the common property.

The court was required to determine several legal issues. Primarily, it needed to ascertain whether the air-conditioner was installed with the consent of the other owners or the strata company. Additionally, the court had to decide whether the installation constituted a breach of the Strata Titles Act and what obligations, if any, the new owner of the property had concerning the air-conditioner. The court also had to consider the noise caused by the air-conditioner and the impact it had on the neighbouring property owners. Finally, the court had to address the issue of whether the air-conditioner should be removed and if so, who would bear the costs of its removal and any resulting damage.

The court found that the air-conditioner was installed without the consent of the other owners or the strata company, thereby breaching the Strata Titles Act. The court ruled that Mr Grimes, as the new owner of the property, had an obligation to remove the air-conditioner and repair any damage caused to the common property. The court also noted that the noise caused by the air-conditioner constituted a nuisance to the neighbouring property owners. As a result, the court ordered Mr Grimes to remove the air-conditioner by a specified date and to make good any damage caused to the common property. The court further ordered that if Mr Grimes failed to comply with the order, the strata company could remove the air-conditioner at Mr Grimes's expense.

Orders

Orders of the court

1. The application succeeds. 2. Mr Grimes must no later than 15 June 2009 remove the air-conditioner the subject of these proceedings from the common property and make good any damage that may have been caused to common property. 3. If Mr Grimes fail to comply with order 2 the strata company may remove the air-conditioner at the cost of Mr Grimes.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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