Porteus and Cosmos Investment Pty Ltd and Ors
[2006] WASAT 31
•14 FEBRUARY 2006
PORTEUS and COSMOS INVESTMENT PTY LTD & ORS [2006] WASAT 31
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 31 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:2540/2005 | DETERMINED ON THE PAPERS | |
| Coram: | DR B DE VILLIERS (MEMBER) | 14/02/06 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application succeeds Orders made | ||
| B | |||
| PDF Version |
| Parties: | JEREMY PORTEUS COSMOS INVESTMENT PTY LTD MICHAEL HALL LE' SELVOIRE PTY LTD |
Catchwords: | Strata title Control and manage common property Apportionment of costs according to unit entitlement |
Legislation: | Strata Titles Act 1985 (WA), s 35(1)(b), s 36(1)(c), s 36(1)(c)(i), s 83(1) |
Case References: | Nil Nil |
Orders | 1. The costs incurred in relation to control and management of the common property must, with immediate effect, be apportioned on the basis of unit entitlement, namely 38% for the account of Mr Porteus and 62% for the account of Cosmos Investment Pty Ltd.,2. The application for apportionment of costs for historical cleaning services is dismissed.,3. The application for apportionment of costs for the Fire Service Meter is dismissed.,4. The advice obtained by Mr Porteus from Strata Title Consulting Services Pty Ltd in regard to events leading to this application, must be apportioned as per Order 1. Cosmos Investment Pty Ltd must pay 62% of the amount of $221.75 to Mr Porteus within 30 days of these orders.,5. The costs incurred by Cosmos Investment Pty Ltd for services rendered by Drainmaster must be apportioned as per Order 1. Mr Porteus must pay 38% of the amount of $440 to Cosmos Investment Pty Ltd within 30 days of these orders.,6. The annual water charges and water usage charges for the period 2003 to 2005 must be apportioned between the parties as per Order 1. Cosmos Investment Pty Ltd must pay 62% of the amount of $3315.25 to Mr Porteus within 30 days of these orders.,7. Electricity charges for the period 2002 to 2005 must be apportioned between the parties as per Order 1. Cosmos Investment Pty Ltd must pay 62% of the amount of $608 to Mr Porteus within 30 days of these orders. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : PORTEUS and COSMOS INVESTMENT PTY LTD & ORS [2006] WASAT 31 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 14 FEBRUARY 2006 FILE NO/S : CC 2540 of 2005 BETWEEN : JEREMY PORTEUS
- Applicant
AND
COSMOS INVESTMENT PTY LTD
MICHAEL HALL
LE' SELVOIRE PTY LTD
Respondents
Catchwords:
Strata title - Control and manage common property - Apportionment of costs according to unit entitlement
Legislation:
Strata Titles Act1985 (WA), s 35(1)(b), s 36(1)(c), s 36(1)(c)(i), s 83(1)
(Page 2)
Result:
Application succeeds
Orders made
Category: B
Representation:
Counsel:
Applicant : Selfrepresented
Respondents : Selfrepresented
Solicitors:
Applicant : Self-represented
Respondents : Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 Mr Porteus applied for an order under s 83(1) of the Strata Titles Act 1985 (WA) (ST Act) to settle a dispute in regard to the apportionment of costs incurred for the maintenance of common property. He also sought an order in regard to the alleged unlawful occupation of the unit of Cosmos Investment Pty Ltd for residential purposes. However, Mr Porteus informed the Tribunal by letter dated 5 August 2005, that the occupation issue is the subject of proceedings by the City of Stirling and that no further action was required in regard thereto. Leave is therefore granted for this part of the application to be amended.
2 In regard to the first order sought, it is alleged by Mr Porteus that Cosmos Investment Pty Ltd has refused to pay its portion of the utilities (water and electricity) levied on the strata company. Although for historical reasons the invoices are made out for the account of Mr Porteus, it is contended that the costs should be paid in accordance with the unit entitlement as per the ST Act.
3 Cosmos Investment Pty Ltd does not dispute the claim for costs to be apportioned on the basis of unit entitlement, but they lodged a counter-claim for cleaning, fire inspection and other costs.
4 The parties are therefore in agreement that costs incurred for the control and maintenance of common property must be apportioned in accordance with unit entitlement and seek orders from the Tribunal in regard to the apportionment of specific historic costs.
Background
5 The strata complex comprises a two lot scheme in Mt Lawley. Mr Porteus owns unit 51A (lot 1) and Cosmos Investment Pty Ltd owns unit 51 (lot 2). The consumption of water on the common property is measured by a meter installed on the premises of Mr Porteus. The reasons for this arrangement are set out in a letter by the previous owner, Mr Ivan Saracik, dated 13 February 2003. In the letter, Mr Saracik explained that the reason for using a single water meter was to simplify management, to reduce duplication and associated costs, and to save money. A sub-meter has been installed for use of electricity. The original owners agreed that all water charges would be levied on unit 51A but shared on a ratio of 38:62.
(Page 4)
6 Although the informal arrangement suited the previous owners, conflicts arose when ownership of the respective lots transferred to new owners. The Tribunal referred the application for mediation but the parties could not reach agreement.
7 Mr Porteus obtained advice from Strata Title Consulting Services Pty Ltd in an effort to resolve the dispute. Mr Ascott, on behalf of the company, made the following recommendations: (i) bills that relate to the common property be charged to the "Owners of 51 Railway Parade Strata Plan 17539", as it would facilitate apportionment to the respective owners; (ii) the water rates and other costs for the management and control for the common property are payable in accordance with the unit entitlement; and (iii) the dispute should be settled in accordance with s 35(1)(b) and s 36(1)(c)(i) of the ST Act.
Legal framework
8 The strata plan was registered on 14 November 1989. The unit entitlement is 21 for lot 1 and 34 for lot 2. This means lot 1 is responsible for 38% and lot 2 of 62% of costs associated with the control and maintenance of common property. A special by-law, by-law 17, was registered on 27 June 1990 to provide for the exclusive use of common property as marked on the strata plan.
9 Section 35(1)(b) of the ST Act places an obligation on the strata company to control and manage the common property for the benefit of both proprietors. Section 36(1)(c) enables the strata company to raise amounts so determined in the levy contributions on the proprietors "in proportion to the unit entitlement of their respective lots".
Issues
10 Several issues were raised during the course of submissions. Some of the issues can best be described as trivial disputes that ought to be settled by the parties in a responsible manner without having to resort to litigation.
11 The main disputes were as follows:
1. The setting up of a strata company and appointment of a strata manager. It appears from submissions that the parties are in agreement to take such action and there is no need for the Tribunal to make any orders. The parties are encouraged to follow up on the advice to ensure that all invoices for services to the common property are made out to the "Owners of 51 Railway Parade Strata
- Plan 17539". There is also no need for the Tribunal to make orders in this regard.
- 2. The apportionment of costs for cleaning services. This did not form part of the original application and the Tribunal will leave it to the parties to determine how cleaning of the common property should best be organised and how historic costs should be dealt with. The claims and counter-claims appear to be rather trivial and it is best for parties to make arrangements for the cleaning of the common property.
3. The Tribunal notes the willingness of Mr Porteus to contribute in proportion to the unit entitlement to the cleaning of the drain. The Tribunal will therefore make appropriate orders to give effect to the undertaking.
4. The advice Mr Porteus sought from Strata Title Consulting Pty Ltd was at his initiative. However, the Tribunal takes into account the reluctance displayed by Cosmos Investment Pty Ltd to resolve the dispute that dragged on for more than three years. Mr Porteus pursued several avenues to secure cooperation of Cosmos Investment Pty Ltd but with little success. The advice Mr Porteus obtained was in the interest of the strata company and a bona fide effort to resolve the conflict. It is therefore reasonable that Cosmos Investment Pty Ltd be ordered to contribute to the consultancy services in accordance with unit entitlement.
5. In regard to the annual water charges, the parties are in agreement in their respective submissions dated 10 December 2005 (Cosmos Investment Pty Ltd) and 7 October 2005 (Porteus) on the total amounts payable and the apportionment thereof in accordance to unit entitlement. The Tribunal will therefore make orders to give effect to the submissions.
6. In regard to the Fire Service Metre, the Tribunal is not satisfied that the Cosmos Investment Pty Ltd has shown why the costs should be apportioned on the basis of the unit entitlement. According to the submission by Mr Saracik, the sole purpose of the sprinkler system was to service the lot of Cosmos Investment Pty Ltd.
Orders
1. The costs incurred in relation to control and management of the common property must, with immediate effect, be apportioned on
- the basis of unit entitlement, namely 38% for the account of Mr Porteus and 62% for the account of Cosmos Investment Pty Ltd.
- 2. The application for apportionment of costs for historical cleaning services is dismissed.
3. The application for apportionment of costs for the Fire Service Meter is dismissed.
4. The advice obtained by Mr Porteus from Strata Title Consulting Services Pty Ltd in regard to events leading to this application, must be apportioned as per Order 1. Cosmos Investment Pty Ltd must pay 62% of the amount of $221.75 to Mr Porteus within 30 days of these orders.
5. The costs incurred by Cosmos Investment Pty Ltd for services rendered by Drainmaster must be apportioned as per Order 1. Mr Porteus must pay 38% of the amount of $440 to Cosmos Investment Pty Ltd within 30 days of these orders.
6. The annual water charges and water usage charges for the period 2003 to 2005 must be apportioned between the parties as per Order 1. Cosmos Investment Pty Ltd must pay 62% of the amount of $3315.25 to Mr Porteus within 30 days of these orders.
7. Electricity charges for the period 2002 to 2005 must be apportioned between the parties as per Order 1. Cosmos Investment Pty Ltd must pay 62% of the amount of $608 to Mr Porteus within 30 days of these orders.
I certify that this and the preceding [11] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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