Reid v Wong

[2016] WASC 355

REID -v- WONG [2016] WASC 355

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 355
Case No:	SAT:1/2016	Heard:	13 OCTOBER 2016
Coram:	MASTER SANDERSON	Delivered:	3/11/16
No of pages:	7	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	JEANNE REID KUM KIT WONG
Catchwords:	Application for leave to enforce judgment Turns on own facts
Legislation:	Civil Judgments Enforcement Act 2004 (WA)
Case References:	Wong v Reid [2016] WASC 59

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : REID -v- WONG [2016] WASC 355 CORAM : MASTER SANDERSON HEARD : 13 OCTOBER 2016 DELIVERED : 3 NOVEMBER 2016 FILE NO/S : SAT 1 of 2016 BETWEEN : JEANNE REID

Plaintiff

AND

KUM KIT WONG
Defendant

Catchwords:

Application for leave to enforce judgment - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff : In person
Defendant : In person

Solicitors:

Plaintiff : In person
Defendant : In person

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

Wong v Reid [2016] WASC 59



1 MASTER SANDERSON: In his poem Mending Wall Robert Frost suggested good fences make good neighbours. When neighbours own strata lots and walls are not an option relationships can become strained. This is such a case. In the present application the plaintiff seeks an order under the Civil Judgments Enforcement Act 2004 (WA) (the Act). To explain why the order is sought it is necessary to offer some background to the dispute. That was done by Beech J in Wong v Reid [2016] WASC 59. His Honour summarised the position as follows:

Background

Mr Wong and the respondent, Mrs Reid, each own units in a four lot strata scheme in Como. Mr Wong owns unit 2 and Mrs Reid unit 1. On 6 March 2015, Mr Wong commenced works to construct a brick wall and Colourbond fence on common property adjoining unit 2. The effect of the wall and fence was to enclose common property for the exclusive use of unit 2. In order to allow the wall to be built, a garden of native plants was removed from the common property.

On 17 March 2015, Mrs Reid applied to the Tribunal under s 83(1) of the Strata Titles Act 1985 (WA), seeking an order for demolition of the wall and fence.

The issues before the Tribunal

Before the Tribunal Mr Wong claimed that he had sought Mrs Reid's approval, by writing to her, but that she had not responded. Mrs Reid stated that she was unaware of Mr Wong's plans to build the wall until the building works commenced on 6 March 2015. Mr Wong said that he approached Mrs Reid on a number of occasions and did not get a response. Mr Wong did not assert that Mrs Reid had given any approval, whether in writing or otherwise.

Further, Mr Wong claimed that, by error in 1996, the area of common property in front of Mr Wong's unit had not been registered as an area for the exclusive use of Lot 2 as had been intended.

Further, Mr Wong asserted that Mrs Reid had a collateral motive in bringing the application, arising from an earlier incident involving the removal by Mr Wong of a tree.

The Tribunal's reasons

The Tribunal found as follows:

(1) the wall was constructed on common property without any formal approval having been obtained from the strata company and without the approval of Mrs Reid;

(2) the area enclosed by the wall and fence is not the subject of an exclusive use bylaw;

(3) Mr Wong claims that the relevant area should have been the subject of the exclusive use bylaw registered in 1996 and a mistake was made at the time of registration of the amended bylaw;

(4) that is immaterial because the legal entitlements of the property depicted in the strata plan are determined by what is in the strata plan. While it may have been open to Mr Wong to take steps to cause the alleged mistake to be rectified, that had not occurred. Further, a right to exclusive use does not give rise to a right to construct;

(5) consequently, the applicant's claim for removal of the fence and wall succeeded;

(6) the claim that Mr Wong was responsible for damage to an area of garden on the common property turned on resolution of conflicting factual assertions made by Mrs Reid and Mr Wong;

(7) having recounted the competing versions, the Tribunal came to the view that Mrs Reid's evidence was to be preferred. The Tribunal found that Mr Wong changed the garden and removed the plants in order to pursue his intention to enclose the common property and not as Mr Wong had claimed, because of the deteriorating state of the garden; and

(8) having significantly altered the state of the common property without the consent of all of the owners of the common property, namely the owners in the strata plan, Mr Wong was responsible for the repatriation of the common property to its original condition.

The orders of the Tribunal

The Tribunal made the following orders:

(1) The respondent shall by 11 September 2015 by his contractors or otherwise demolish and remove the wall and Colourbond fence which he caused to be constructed on the common property on the front of his lot.

(2) The respondent and/or his contractors shall make good any damage occasioned by compliance with order 1.

(3) By 13 November 2015 the respondent shall arrange and pay to a maximum of $3,000 for reconstitution of the garden in the common property in front of lot 2 which:


(a) is terraced as previously; and

(b) is populated with Western Australian native plants to be agreed by the strata company [3] - [9]. (footnotes omitted)

2 His Honour dismissed the appeal and accordingly the orders made by the State Administrative Tribunal stand. It is the plaintiff's contention the orders have not been complied with by the defendant. She now seeks an order under s 99 of the Act. That section is in the following terms:

Court may order act to be done at expense of obligated person

(1) This section applies if a judgment requires or has the effect of requiring a person (the obligated person) to do an act.

(2) In order to enforce such a judgment, a person who is entitled to the benefit of the judgment may apply to the court for an order addressed to -


(a) the person entitled to the benefit of the judgment; or

(b) a person appointed by the court,

that authorises that person to do the act concerned, or as much of it as is practicable, at the expense of the obligated person.


(3) The court may make such an order and may do so on terms as to costs or otherwise.

(4) The court may make such an order whether or not proceedings for contempt are being taken against the obligated person.

(5) When or after making such an order the court may make any necessary ancillary or consequential order including an order providing for the expenses of carrying out the order to be determined by the court.

(6) When or after making such an order, the court may make an enforcement order under Part 4 for the purpose of enforcing the payment of -


(a) the enforcement costs associated with the order; and

(b) the expenses determined under subsection (5).

3 In support of her application the plaintiff relies on three affidavits - one sworn 20 April 2016, one sworn 18 August 2016, and the last sworn 23 September 2016. The defendant relies on two affidavits both sworn 7 October 2016.

4 The nature of the dispute is simple. The plaintiff says the work the defendant was ordered to do has not been done. The defendant says it has been done. So now this court is called upon to adjudicate in relation to a dispute over some $3,000.

5 The plaintiff sets out her complaints in par 5 of her affidavit of 23 September 2016. It is in the following terms:

On the Thursday 8 September 2016 just before the Directional Hearing for the Supreme Court on Tuesday 13 September 2016 Mr Wong removed part of the limestone foundation wall at the footpath edge of the lot, along the driveway and in front oh [sic] is bedroom window. He put some plants into the sand without conditioning the ground. Mr Wong's version of complying with the Order however falls very short -

• There is not $3000 worth of plants planted. There are only two types - that Mr Wong has planted -kangaroo paws and Pittosporum (?). The garden was previously filled with grevillea, bottlebrush, Geraldton Wax, native ground covers and Chinese Tallow tree. Mr Wong let these all die.

• Mr Wong did not seek input from the Body Corporate only providing a sketch of a planting of Pittosporum hedges and leaving the middle as sand (Attachment 8)

• The plants were put into ordinary soil and planted in a line and not how the garden was planted previously. It looks very unnatural.

• There is NO reticulation and Attachment 8 shows it was in place

• The rocks have been put in in a straight row and not as a terraced rockery as before

• The two 40 year old gum trees that he cut down to build his wall are obviously irreplaceable and leave a huge void in the garden. These need to be replaced (see photo of trees in Attachment 9)

6 In his affidavit of 7 October 2016 the defendant says he has complied fully with the order. He points out he was required to spend $3,000 rehabilitating the garden and he has in fact spent $3,442.50. He attaches invoices to that effect.

7 Most importantly Mr Wong attaches copies of minutes of an extraordinary general meeting of the strata company held on 20 April 2016. It is apparent from the minutes ill will between factions within the strata company led to some disorderly discourse. But a resolution was passed and it was in the following terms:

RESOLVED: That, in respect of the common property between Lot 2 and the Saunders Street road reserve (excluding vehicular drive-ways to garages):

a) the currently sandy 'garden' area between a limestone retaining wall and the Saunders Street road reserve (which area was previously a dilapidated set of 'terraces') will be made flat to a level approximately equal to the footpath on Saunders Street;

b) that 'garden' area will be planted with lawn and low level shrubs such as 'pittosporum';

c) the area closer to the building comprising Lot 2, which area has been covered in timber decking since a time prior to Mr Wong becoming the proprietor of Lot 2, is to remain as is;

and

d) the existing remainder of the limestone wall (approximately two courses of limestone blocks plus footings) are to remain in place in lieu of the previously existing wire framed, stick timber screen.

The Chairman ruled that in view of the fact that the proprietor of Lot 1 and her assistants had left the meeting, the voting on this item would be recorded:

Lot 1 - did not vote - due to absence from meeting;


Lot 2 - voted in favour of motion;
Lots 3 & 4 - voted by proxy in favour of motion.

The chairman advised the proprietor of Lot 2 that, in view of the concerns expressed earlier in this meeting by the proprietor of Lot 1 regarding alleged non-compliance with the SAT Orders, the validity of the above resolution could be challenged on the bias of inconsistency with an Order by SAT. The Chairman suggested that the proprietor of Lot 2 may wish to seek legal advice on the matter.

8 In the light of that resolution and having considered all the matters raised in the affidavits I have concluded the defendant has largely complied with the orders made by the State Administrative Tribunal and there is no basis upon which an order under s 99 of the Act could issue. Accordingly, the application will be dismissed.

9 Neither party was represented and there will be no order as to costs.