REITMAJER and COUNCIL OF OWNERS OF 14/16 MOLLOY STREET BUNBURY - [2009] WASAT 63

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: REITMAJER and COUNCIL OF OWNERS OF 14/16 MOLLOY STREET BUNBURY [2009] WASAT 63

MEMBER: MR T CAREY (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 8 APRIL 2009

FILE NO/S: CC 1745 of 2008

BETWEEN: TONI REITMAJER
DARRYL SMITH
Applicants
AND
COUNCIL OF OWNERS OF 14/16 MOLLOY STREET BUNBURY
Respondent

Catchwords:

Strata titles Maintenance of ceilings Whether strata company responsible Construction of Strata Titles Act 1985 (WA) provision that boundary is the undersurface of ceiling

Legislation:

Strata Titles Act 1966 (WA)
Strata Titles Act 1985 (WA), s 3, s 3(2), S 3AB, s 3(4), s 35(1)(c), s 83(1), Sch 1

Result:

Application unsuccessful

Category: B

Representation:

Counsel:

Applicants: Self-represented
Respondent: Self-represented

Solicitors:

Applicants: Self-represented
Respondent: Self-represented

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants brought an application against the council of owners of the strata company for the residential strata scheme in which they owned a lot in respect of the deterioration of some of the ceilings in their lot. Although the application alluded to such items as cracking and powderisation, the only evidence to be adduced suggested that the necessary works were limited, at least initially, to re-painting including normal preparation.
The issue to be determined was which of the proprietor and the strata company is responsible to maintain the under‑surface of the ceilings. The applicants contended that this responsibility rested with the strata company, but the Tribunal, upon analysis of the scheme of the Strata Titles Act 1985 (WA) to which it was necessary to have regard, concluded that it was the responsibility of proprietors. That being so, the application could not be sustained and was dismissed.

Introduction

The applicants own a lot in a residential strata scheme comprising 18 lots situated in Bunbury. A dispute has arisen between the applicants and the Council as to the responsibility for maintaining the ceilings of the applicants' unit.
The applicants seek an order pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (ST Act) that the strata company, through the Council, either itself or by its agents, replace or repair and repaint certain painted ceilings bounding the applicants' lot. According to the application, the ceilings and painted surfaces are in poor condition, with flaking paint and areas of black mould apparent on the ceiling surface in the two bedrooms and bathroom, with cracks and powderisation of the ceiling surface being evident in the living areas. Orders were also sought for reimbursement of loss of rent by reason of the applicants having to reduce the rent payable buy their tenant occupying the lot on account of the poor condition of the ceilings. The applicants say that they have reduced the weekly rental by $20 per month from 8 June 2008 and continuing.

Issue

Because any responsibility of the strata company arises under its duty under s 35(1)(c) of the ST Act to keep in good and serviceable repair and properly maintain the common property, the primary issue for determination is whether those parts of the ceilings requiring maintenance are part of the lot or are common property.

Are the ceilings part of the lot or common property?

The applicants' case was supported by their legal advice, which was to the following effect:
The strata plan was registered on 7 June 1985, at which time it was subject to the Strata Titles Act 1966 (WA) (1966 Act). Under the 1966 Act, the boundaries between lots, and between lots and common property, were the centre plane of the walls, floor and ceiling of each lot. On replacement of the 1966 Act by the ST Act on 30 June 1985, the former boundaries of lots were changed automatically to the upper surface of the floor, the inner surfaces of the perimeter walls and the under‑surface of the ceiling of the respective parts of the building in which the lots were situated. Although the strata plan might specify variations from the automatic operation of the ST Act, this strata plan did not. The result was that '… all of the perimeter walls, floors and ceilings of the part of the building in which your lot is situated are common property in respect of which your Strata Company has the obligations referred to … ' in s 35(1)(c) of the ST Act.
Although there is no reason to doubt the correctness of the applicants' legal advice to the extent that its reference to 'perimeter walls, floors and ceilings' concerns the bulk or thickness of those structures, further consideration is necessary in order to ascertain whether the stated conclusion applies to the interior surfaces of those structures.
It is necessary in that regard to trace through the definitions of 'lot', 'floor plan' and 'common property' which appear in s 3 of the ST Act. The relevant portion of the definition of 'lot' in relation to a strata scheme is in the following terms:
'lot' … means one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan … being in each case, but subject to section 3AB, cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), …
The definition of 'floor plan' is relevantly as follows:
'floor plan' means a plan, consisting of one or more sheets which ‑
(a)defines by lines … the base of each vertical boundary of every cubic space forming the whole of a proposed lot, or the whole of any part of a proposed lot, to which the plan relates;
…
The definition of 'common property' is relevantly as follows:
'common property' means ‑
(a)so much of the land comprised in a strata plan as from time to time is not comprised in a lot shown on the plan;
…
Section 3(2) of the ST Act, to which the definition of 'lot' refers, provides:
Except where section 3AB applies, the boundaries of any cubic space referred to in paragraph (a) of the definition of 'floor plan' in subsection (1) ‑
(a)except as provided in paragraph (b) ‑
(i)are in the case of a vertical boundary, where the base of any wall corresponds substantially with any line referred to in paragraph (a) of that definition ‑ the inner surface of that wall; and
(ii)are, in the case of a horizontal boundary, where any floor or ceiling joins a vertical boundary of that cubic space ‑ the upper surface of that floor and the under surface of that ceiling;
or
(b)are such boundaries as are described on a sheet of the floor plan relating to that cubic space (those boundaries being described in the prescribed manner by reference to a wall, floor or ceiling in a building to which that plan relates or to structural cubic space within that building).
Section 3AB of the ST Act does not apply to the scheme in question, and the floor plan of the scheme does not describe any boundaries in the manner referred to in s 3(2)(b).
Section 3(2)(a)(ii) of the ST Act deems, in relation to strata schemes to which it applies, the horizontal boundary comprising a ceiling to be the under‑surface of that ceiling. But what does it mean to say that a boundary is the under‑surface of a ceiling?
The applicants' case depends on the premise that, in relation to this scheme, the lot is comprised of all the air within the walls, floor and ceiling of the unit, but no surfaces ‑ that is, the boundary lies between the air and the inner surfaces of the structures referred to.
In my view, such a construction is inconsistent with the ordinary meaning of the words used in s 3(2) of the ST Act. As I have said, those words deem the boundaries to include the under-surface of ceilings. To say something is 'the boundary' of the lot is, in ordinary parlance, to say that it forms a part of the lot, albeit the furthest extension of it. This is consistent with the definition of 'boundary' in The Macquarie Concise Dictionary, Moore A, (ed), Macquarie Library, Sydney, 2004, which includes:
something that indicates bounds or limits; a limiting or bounding line.
The matter is put beyond doubt, in my view, when one goes to the second reading speech of the Bill which ultimately became the ST Act. The passage is to be found in the Strata Titles Bill, Western Australia, Legislative Assembly, Parliamentary Debates (Hansard), 16 April 1985 at 2018 and following. In particular, at 2019, the then Minister for Lands and Surveys, the proponent of the Bill which became the ST Act, said in relation to what were to become s 3(2) and s 3(4) of the ST Act:
The proposals in subclauses (2) to (4) of clause 3 of the Bill, following the New South Wales legislation, lay down detailed rules to enable a lot which is three‑dimensioned to be defined on a two[‑]dimensional plan. The relevant rules are described in paragraph 3.5 of the commission's report.
One interesting change which they will bring about is [to] make the inner surface of boundary walls, floors, and ceilings the boundary of the lot, unless there is a contrary indication on the plan. At present the general rule is that it is the centre line of the boundary wall, floor, or ceiling which constitutes the boundary of the lot – section 5(5). This change will not affect the right of the proprietor to make the normal use of the interior surfaces of his lot as by painting, wallpapering or otherwise decorating or affixing carpets, furniture, fly screens, locking devices, and other things to those surfaces. This right is specifically preserved by by‑law 2 of the standard by‑laws ‑ see schedule 1, clause 42(2).
This passage makes clear that the pre‑existing position that proprietors had the right to do as he or she chose with respect to the interior surfaces of boundary walls, floors and ceilings constituting the boundaries of the lot would survive the change of boundary from the centre line of whichever structure was being considered to the inner surface of that structure. Further, it notes that this right is specifically preserved by by‑law 2 of the standard by‑laws. The applicants' scheme has retained the standard by‑laws (the only notification on the title concerns bestowing exclusive use on proprietors on specified parts of the common property). Sch 1 by‑law 2 provides for the right of proprietors, without obtaining the consent of the strata company, to paint, wallpaper or otherwise decorate 'the structure which forms the inner surface of the boundary of his lot'. This is entirely consistent with the correct construction of s 3(2) of the ST Act requiring that the inner surfaces of the boundary structures form part of the lot.

Conclusion

It follows, from my reasoning above, that the application, insofar as it would have the strata company, through the Council, arrange for the painting of the applicants' ceiling surfaces, is misconceived and must be dismissed. It is misconceived because it attributes to the strata company the responsibility to maintain the under‑surfaces of ceilings, which, in truth, is the applicants' responsibility. Nor can the Council be liable for any loss of rent arising from the ceilings' condition, to the extent that their under-surfaces require attention.
Although, as I have said, there are suggestions of deterioration of the ceiling structure, at least to the extent of some cracks and powderisation, the only evidence produced as to the condition of the ceilings was a quotation from a painter comprising the cost of preparation of the ceilings by the painter and their subsequent painting. As was indicated to the applicants at a directions hearing on 12 March 2009, this evidence supports a claim for maintenance of the under‑surface of the ceiling only, and the applicants accepted that this was the case. Of course, if, by reason of significant cracking or some other structural issue, the integrity of the ceiling structure ever came into question, the strata company's duty under s 35(1)(c) of the ST Act might become relevant.

Order

The application is dismissed.

I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER