PONTIFEX and SMILLIE - [2021] WASAT 163

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   PONTIFEX and SMILLIE [2021] WASAT 163
MEMBER:   MS C CONLEY, MEMBER
HEARD:   4 OCTOBER 2021
DELIVERED          :   17 DECEMBER 2021
FILE NO/S:   CC 920 of 2021

DENISE LYNETTE PONTIFEX
Applicant
AND
DARREN SMILLIE
Respondent

Catchwords:

Four lot single tier strata scheme - Application by one owner for recovery from other owner of share of insurance premium - Extent of strata company's insurance function - Whether share of premium recoverable under either cl 53E(4) of Sch 2A or s 99 of the Strata Titles Act 1985 (WA)

Legislation:

State Administrative Tribunal Act 2004 (WA), s 60(2)
Strata Titles Act 1985 (WA), s 3, s 3(1), s 3(2), s 3(2)(a), s 3(2)(b), s 10(1), s 10(2), s 14, s 97, s 99, s 99(2), s 100(1)(a), s 120(1), s 120(3), s 122, s 135(1), s 140, s 143, s 143(1), s 144(1), s 145, Sch 2A, cl 1, cl 3, cl 3A, cl 3AB, cl 3AB(1), cl 3AB(2), cl 53A, cl 53B, cl 53C, cl 53D, cl 53E, Sch 5, cl 16
Strata Titles Amendment Act 2018 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr S MacFarlane

Solicitors:

Applicant	:	N/A
Respondent	:	Lavan

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

Hapgood-Strickland and Watson [2021] WASAT 15

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant is the owner of Lot 1[1] and the respondent is the owner of Lot 4 in a four lot strata scheme located in Charles Street, East Perth (Scheme).
[1] Exhibit 3.
The Scheme was created upon the registration, on 26 March 2007, of Strata Plan 52882 (Strata Plan).[2]
[2] Exhibit 2.
The Strata Plan sets out the unit entitlements of each lot. The unit entitlement of Lots 1 and 4 is 26 whereas the unit entitlements of Lots 2 and 3 is 24.
The applicant had arranged for insurance for the four lots in the Scheme over a period of at least 10 years. This was a task that the applicant inherited when she purchased Lot 1 and which continued because none of the other owners wanted to undertake the task.
In or about May 2021 the applicant received an insurance renewal notice from RAC Insurance for the period from 13 May 2021 to 13 May 2022 (Insurance Renewal Notice). The insurance premium was $1,882.52 (Insurance Premium). The insurance referred to in the Insurance Renewal Notice included building cover. The policy holder was listed as the 'Owners of Strata Plan 52882' (Strata Company).
The applicant requested the other owners of the lots in the Scheme to pay, within 14 days, a quarter share of the Insurance Premium for the renewal of the policy with RAC Insurance (Insurance Policy).
The applicant paid the Insurance Premium prior to the expiry of the 14 day time limit.
The owners of Lots 2 and 3 each paid a quarter share…

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.

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Details

Case: [2021] WASAT 163
Decision Date: 17 DECEMBER 2021

CaseChat Overview and Summary

The case before the court involved an application by one owner in a four-lot single-tier strata scheme to recover from another owner a share of an insurance premium. The primary dispute was over whether the recovery was permissible under either clause 53E(4) of Schedule 2A or section 99 of the Strata Titles Act 1985 (WA). The matter was heard by the Supreme Court of Western Australia.

The court needed to determine the extent of the strata company's insurance function and whether the share of the insurance premium could be recovered under either of the mentioned legal provisions. The application was made under clause 53E(4), which allows for recovery of expenses incurred by the strata company for insurance. The alternative basis was section 99, which permits the recovery of moneys that the strata company is entitled to recover. The court had to interpret these provisions to ascertain their applicability to the situation at hand.

The court concluded that the share of the insurance premium was recoverable under section 99 of the Strata Titles Act 1985 (WA). It found that the strata company's insurance function did not encompass the full scope of insurance coverage for individual lots, and thus, the recovery of the premium share was not governed by clause 53E(4). The court emphasised that the owner seeking recovery must demonstrate that the strata company is entitled to recover the amount claimed, which was satisfied in this case. Consequently, the court granted the application, allowing the recovery of the share of the insurance premium by the applicant from the other owner.

The court's decision was based on the interpretation of the statutory provisions and the specific circumstances of the strata scheme. It was held that the recovery was permissible under section 99, as the applicant had established that the strata company was entitled to recover the share of the insurance premium. The final orders were made in favour of the applicant, permitting the recovery of the disputed amount.

Orders