READ and OWNERS OF MADISON HEIGHTS STRATA PLAN 18805
[2009] WASAT 92
•20 MAY 2009
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: READ and OWNERS OF MADISON HEIGHTS STRATA PLAN 18805 [2009] WASAT 92
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: 21 MARCH 2009
DELIVERED : 20 MAY 2009
FILE NO/S: CC 319 of 2009
BETWEEN: NICHOLAS READ
Applicant
AND
OWNERS OF MADISON HEIGHTS STRATA PLAN 18805
Respondent
Catchwords:
Strata title Several issues in regard to the duties imposed on the strata council in regard to parking, fixing television antenna and gardening
Legislation:
State Administrative Tribunal 2004 (WA), s 60(2)
Strata Titles Act 1985 (WA), s 83(1)
Result:
The application is dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Ms K Richardson (Strata Manager)
Solicitors:
Applicant: Self-represented
Respondent: Owners of Madison Heights Strata Plan 16805
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The application concerns several issues Mr Read raised in regard to the control and management of the strata scheme by the strata council. The concerns, in summary, related to issues arising from parking, enforcing of by‑laws, gardening and pruning of trees, fixing of television cable, access to electrical meter box, and other behavioural issues.
The hearing was conducted in three phases:
1)to give Mr Read an opportunity to withdraw some of the complaints, due to clarifications given by the Tribunal;
2)the Tribunal handed down decisions with oral reasons in regard to some of the issues; and
3)the remaining issues were scheduled for written submissions by the strata council and a reply from Mr Read, followed by a decision on the documents.
It appeared that most of the orders sought by Mr Read were not available under the Strata Titles Act 1985 (WA), since he sought a wide range of criminal investigations and prosecutions. All the aspects of his application that sought criminal proceedings to be undertaken, or issues related thereto, were therefore dismissed.
The remainder of issues that concerned Mr Read were submitted to the strata council for comment. After having received the strata council's comment and Mr Read's reply thereto, the remainder of his application was dismissed.
The strata council undertook to address two issues he raised, namely, treatment of the Tuart trees and checking the security system.
The Tribunal expressed concern at the health and wellbeing of Mr Read. It appeared as if the application and the large amount of correspondence following it, most of which was irrelevant, may have been influenced by factors that are more related to his health than to the actual merits of the issues. The Tribunal therefore took time to explain to Mr Read why it came to its decision, although the issues he raised were, strictly speaking, not meritorious at all.
The application was dismissed.
Issue
The complaint concerns several issues Mr Read raised in regard to the control and management of the strata scheme by the strata council. The concerns, in summary, related to parking, enforcing of by-laws, gardening and pruning of trees, fixing of television cable, access to electrical meter box, and other behavioural issues. The application listed 10 orders sought, some of which were formulated in the alternative.
Background
The application was filed on 5 March 2009 pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (ST Act). At the directions hearing which took place on 19 March 2009, the State Administrative Tribunal (Tribunal) discussed with Mr Read in great detail the merit of each of the orders he sought. It was apparent to the Tribunal that Mr Read was experiencing severe emotional stress and anxiety prior to and at the directions hearing. The Tribunal therefore went out of its way to assist Mr Read to fully explain the nature of his complaints, to clarify provisions of the ST Act and to raise any issues he would like to discuss.
Three results arose from the directions hearing:
(a)Mr Read sought leave to withdraw a number of orders sought;
(b)the Tribunal dismissed a number of offers sought and gave oral reasons for its decision; and
(c)programming orders were made for the remainder of the issues to be dealt with on the papers, after submissions had been received from the strata company and Mr Read.
After submissions had been received from the strata company and Mr Read, the Tribunal ordered that the matter be dealt with on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
The parties were notified that the decision was to be handed down on 20 May 2009, since the Tribunal thought it appropriate to explain its reasons to Mr Read in person rather than for him to rely merely on the written reasons.
On 1 April 2009, Mr Read requested a transcript of the proceedings that took place on 19 March 2009. On inspection by the Executive Officer of the Tribunal, it appeared that, due to a clerical error, the proceedings were not recorded and, as a result, a transcript could not be made available. Mr Read was informed of this situation in a letter dated 4 May 2009 under the signature of Mr Alistair Borg, Executive Officer. Mr Borg also informed Mr Read that the presiding member had indicated that, in the absence of a transcript of proceedings, he would also include in his reasons for decision the matters that were resolved on 19 March 2009.
The Tribunal is concerned about the wellbeing of Mr Read. It would appear from his submissions and correspondence, most of which are completely irrelevant to the dispute, that he is in a state of anxiety and paranoia about people watching and conspiring against him. This concern of the Tribunal is enhanced by correspondence Mr Read provided to the Tribunal from the Department of Health and from his father.
Issues raised by Mr Read
The Tribunal will hence consider each of the issues raised by Mr Read, including those matters that were disposed of at the hearing of 19 March 2009.
Leave granted for draft orders to be withdrawn
(a)Draft order 1B: Leave was granted for the application to be withdrawn after it was explained to Mr Read that the Tribunal is not the appropriate authority to investigate allegations of theft of personal property or the alleged unlawful placing of items on the property of Mr Read.
(b)Draft order 2B: Leave was granted for the application to be withdrawn after it was explained to Mr Read that the Tribunal is not the appropriate authority to order the police to charge a person or to order a person to be taken for psychiatric assessment. Such concerns or complaints must be submitted to the appropriate authorities.
(c)Draft order 3A and draft order 3B: Leave was granted for the application to be withdrawn after it was explained to Mr Read that the Tribunal is not empowered to direct the police to do certain things or to undertake the type of investigation he is interested in.
(d)Draft order 4A and draft order 4B: Leave was granted for the application to be withdrawn after it was explained to Mr Read that the Tribunal is not empowered to investigate the concerns of a personal nature he expressed in regard to the behaviour of the cleaner or to order the police to undertake the investigations he seeks.
(e)Draft order 11A: Leave was granted for the application to be withdrawn after it was explained to Mr Read that the Tribunal is not the appropriate authority to order the police to disclose their sources or to provide documentation to Mr Read.
Dismissal of orders sought
The following orders sought by Mr Read were dismissed for the reasons given orally during the hearing of 19 March 2009.
The reasons can be summarised as follows:
(a)Draft order 7: The Tribunal explained to Mr Read that it does not have the power to terminate the service of the cleaner for the reasons raised in the application. If he is unhappy with the services of the cleaner, he must bring it to the attention of the strata company.
(b)Draft order 11B: The Tribunal dismissed the request for the strata company to investigate who parked on Mr Read's property on 31 December 2008 since it was nearly three months ago and the resources required for such an investigation would far outstrip any benefit that could be gained.
(c)Draft order 11C: The Tribunal dismissed the request for a policeman to be appointed to undertake an investigation on grounds that the Tribunal does not have such powers, and criminal prosecutions and complaints of alleged criminal activities must be taken up with the police.
(d)Draft order 11D: The Tribunal dismissed the request for criminal proceedings to be instituted for a person parking in the wrong area, on grounds that it is frivolous, the identity of the person is not known and, if Mr Read desires criminal proceedings to be undertaken, he must lodge a complain with the police.
(e)Draft order 11E: The Tribunal dismissed the request that Mr Read selects a police officer to undertake the investigation, on grounds that the Tribunal does not have such powers.
Determination of remaining issues
The Tribunal invited the strata council and Mr Read to address in writing the remaining draft orders sought. Both made further submissions.
The consideration of the Tribunal and its decision in regard to each of the matters follows:
(a)Draft order 1A: The strata company expressed concern that it does not have the resources to lodge an investigation as to the identity of a person who placed material such as a bicycle, carton box and road cone on the lot of Mr Read. The Tribunal concurs with the strata council. The alleged incidents took place on 11 January 2009 and 23 January 2009 and, although it may be upsetting to Mr Read, the strata council cannot be expected to direct scarce resources to undertake such as investigation several months after it had happened. The Tribunal must take into account the scarce resources of the strata company and the little, if any, chances of success for such an investigation to succeed. The application is therefore dismissed.
(b)Draft order 2A: The strata company explained that it does not carry any knowledge of the identity of the person who may have placed items on Mr Read's property or the person who might have written the note, and that it does not have the powers to charge any person with an offence. The Tribunal concurs with the strata company. The Tribunal understands that these incidents may have upset Mr Read and it may cause him distress, but the resources of the strata company are scarce and it must balance competing interests. It cannot be justified for the strata company to conduct an investigation in what may turn out to be a prank or a completely fruitless exercise. If Mr Read is of the view that a crime was committed, he must submit his concern to the appropriate authority for it to consider. The application is therefore dismissed.
(c)Draft order 5: The strata company explained that it had previously assisted Mr Read in regard to his complaint about poor television reception. It was suggested to him that he seek the assistance of a technician or talk to the original installers of the system since none of the other units in the scheme experience reception problems. The Tribunal is satisfied that the strata company had dealt with Mr Read in a proper way by referring him to a technician. There is nothing before the Tribunal to suggest that the poor reception, if any, is due to a lack of care on behalf of the strata company. The Tribunal concurs that Mr Read must take up the complaint with a technician and, if it appears that the problem rests with the strata company, it can again consider his concern. The application is therefore dismissed.
(d)Draft order 6: The strata company has agreed to provide a key to the electrical meter box. In fact, according to the strata council, a key was forwarded to Mr Read prior to the lodgement of this application. The request therefore has no grounds upon which to continue. The application is therefore dismissed.
(e)Draft order 8: The strata company has agreed to appoint a tree consultant to inspect the occurrence of 'leaf miner' in the Tuart trees. A copy of the report will be provided to Mr Read when it becomes available. There is therefore no need for the Tribunal to make an order for the strata company to do something that it has already agreed to. The application is therefore dismissed.
(f)Draft order 9: The strata company has agreed to obtain a report on the security cameras and the monitor, and will, in due course, report to Mr Read if there is any data available that may be of assistance in resolving his complaint. The application is therefore dismissed.
(g)Draft order 10: The strata company cannot be ordered by the Tribunal to 'delete a by‑law'. The strata company explained in its submission the policy regarding parking, and expressed concern that it is not aware of the grounds for Mr Read's complaint. The car bays that are not available for use by lot owners can be used for visitor parking. The Tribunal cannot find any ground for the complaint, and it must therefore be dismissed.
Conclusion
These reasons for decision provide an overview of the proceedings of 19 March 2009 and also contain the Tribunal's decision in regard to those matters that were not disposed of in earlier proceedings. Mr Read has had part success in some of the concerns he raised, in particular with regard to the access to the electrical meter box, the treatment of the Tuart trees and the functioning of the closed circuit security system. Since the strata company has undertaken to deal with those matters, there was no need for the Tribunal to make any further orders. The remainder of the application is dismissed for the reasons set out above.
Order
The application is dismissed.
I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER
0
0
2