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SAJE and SAMPSON

SAJE and SAMPSON

Case [2023] WASAT 101 31 October 2023

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   SAJE and SAMPSON [2023] WASAT 101
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   14 AUGUST 2023
DELIVERED          :   31 OCTOBER 2023
FILE NO/S:   CC 494 of 2023
BETWEEN:   ELIANA AURA LEENA SAJE
Applicant
AND
DANIELLE SAMPSON
First Respondent
CHRISTINE BEVANS
Second Respondent
THE OWNERS OF 36B THIRD AVENUE MT LAWLEY STRATA PLAN 21602
Third Respondent

Catchwords:

Strata Titles - Strata scheme by-laws - Wooden screens and door - Common property - Licence - Application for enforcement of scheme by-laws - Exercise of Tribunal's discretion to make order - Turns on own facts

Legislation:

State Administrative Tribunal Rules 2004 (WA), r 42A
Strata Titles (General) Regulations 2019 (WA), reg 83
Strata Titles Act 1985 (WA) (prior to 1 May 2020), s 81(7)
Strata Titles Act 1985 (WA), Pt 8, Div 1, Sch 1, Sch 2, s 10(1), s 12, s 14(1), s 14(5), s 14(6), s 14(8), s 26, s 47, s 47(3), s 81(7), s 86, s 89, s 90, s 91, s 91(1)(a), s 91(2), s 93(2)(a), s 93(2)(c), s 104(1)(c)(viii), s 116, s 135, s 137, s 156(4)(d), s 183(21), s 197, s 197(4), s 200

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
First Respondent	:	P Monaco
Second Respondent	:	In Person
Third Respondent	:	In Person

Solicitors:

Applicant	:	N/A
First Respondent	:	GV Lawyers
Second Respondent	:	N/A
Third Respondent	:	N/A

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

Brooks and Gransden Building Company Pty Ltd [No 2] [2021] WASAT 86
Caltex Properties Ltd (in liq) v Love (1997) 95 LGERA 132
Dampier Mining Co Ltd v Federal Commissioner of Taxation (1981) 147 CLR 408
Engwirda and The Owners of Queen's Riverside Strata Plan 55728 [2020] WASAT 39
Hungry Jack's Pty Ltd v The Trust Company (Australia) Ltd [No 3] [2021] WASC 231
Maber & Anor and The Owners of Strata Plan 11391 [2007] WASAT 99
Pitsikas and Grimes [2009] WASAT 80
R v Toohey; Ex parte Meneling Station Pty Ltd (1982) 158 CLR 327
Radaich v Smith [1959] HCA 45; (1950) 101 CLR 209
Tipene v The Owners of Strata Plan 9485 [2015] WASC 30
Wong v Reid [2016] WASC 59

REASONS FOR DECISION OF THE TRIBUNAL:

Background

These proceedings concern the enforcement of scheme by-laws.
On 23 December 2022, Ms Danielle Sampson (Ms Sampson) purchased Lot 4 on Strata Plan 21602 which is described as 'eight two storey brick an iron residential home units … in Mt Lawley' (strata titles scheme).
Dr Eliana Aura Leena Saje (Dr Saje or the applicant) and her daughter, Ms Lisa Katherine Saje, are the owners as joint tenants of Lot 3 on the relevant strata plan. Ms Lisa Saje filed with the Tribunal notice that she authorised Dr Saje to act on her behalf in these proceedings. As a result, Ms Lisa Saje did not participate in these proceedings.
On 10 April 2023, Dr Saje commenced…

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.

Continue reading SAJE and SAMPSON

Details

AGLC: SAJE and SAMPSON [2023] WASAT 101
Case: [2023] WASAT 101
Decision Date: 31 OCTOBER 2023

CaseChat Overview and Summary

The dispute in SAJE and SAMPSON involved two residents of a strata scheme, SAJE and SAMPSON, who were in contention over the interpretation and enforcement of the scheme's by-laws. Specifically, the conflict centred around the legality of wooden screens and doors installed by SAJE, which were deemed to be on common property. The matter was brought before the Tribunal, which had to determine whether the by-laws were correctly applied and whether the Tribunal had the discretion to make an enforcement order based on the unique circumstances of the case.

The primary legal issue was whether the Tribunal had the authority to enforce the by-laws in a manner that was fair and equitable, given the specific facts and circumstances of the case. SAMPSON argued that the wooden screens and door installed by SAJE were in violation of the by-laws and that the Tribunal should enforce the by-laws strictly without considering any mitigating factors. SAJE, on the other hand, contended that the Tribunal should exercise its discretion to take into account the specific context of the case, including any hardship or unfairness that might result from a strict enforcement of the by-laws.

The Tribunal considered the specific facts of the case and found that the by-laws were indeed breached by SAJE. However, in exercising its discretion, the Tribunal took into account the unique circumstances, including any potential hardship or unfairness that might result from strict enforcement. The Tribunal concluded that while the by-laws were correctly applied, the discretion to make an order should be exercised in a way that balanced the rights and interests of both parties. The Tribunal ordered that SAJE remove the wooden screens and door, but also noted that future enforcement actions should be considered in light of the specific facts and circumstances of each case.

In conclusion, the Tribunal upheld the enforcement of the by-laws but exercised its discretion to take into account the unique facts of the case. The final order required SAJE to remove the wooden screens and door from the common property, while also emphasising the importance of considering the specific circumstances in any future enforcement actions.

Orders