SAMARDZIC and OWNERS OF 178 COLLIER ROAD EMBLETON STRATA PLAN 31300 - [2011] WASAT 99

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: SAMARDZIC and OWNERS OF 178 COLLIER ROAD EMBLETON STRATA PLAN 31300 [2011] WASAT 99

MEMBER: MR S ELLIS (SENIOR SESSIONAL MEMBER)

HEARD: 23 MAY 2011

DELIVERED : EDITED REASONS DELIVERED ORALLY ON
23 MAY 2011

FILE NO/S: CC 779 of 2010

BETWEEN: NEZIRA SAMARDZIC
SPASOJA SAMARDZIC
Applicants
AND
OWNERS OF 178 COLLIER ROAD EMBLETON STRATA PLAN 31300
Respondent

Catchwords:

Strata titles - Inconsistency between unit entitlement and value

Legislation:

Strata Titles Act 1985 (WA), s 103H, s 103H(3)

Result:

Unit entitlement varied

Category: B

Representation:

Counsel:

Applicants: Selfrepresented
Respondent: Ms K Richardson (Acting as Agent)

Solicitors:

Applicants: Self-represented
Respondent: Richardson Strata Management Services

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.
The applicants applied under s 103H of the Strata Titles Act 1985 (WA) for an order varying the unit entitlements of the owners of Strata Plan 31300.
The Tribunal accepted evidence of a licensed valuer, Mr K Eaton, about the respective values of the lots in the Strata Plan. His evidence showed that there was an inconsistency between the unit entitlements of the lots and the aggregate value of all the lots in the Strata Plan.
The Tribunal considered that this discrepancy was unfair and anomalous and ordered that the unit entitlements be amended to reflect the value of the lots in the strata plan so as to reflect Mr Eaton's evidence.

Introduction

This is an application under s 103H of the Strata Titles Act 1985 (WA) (ST Act).
What that section requires me to consider is whether the proportion that the unit entitlement of any lot in the scheme bears to the aggregate unit entitlement of all lots in the scheme is not consistent with the proportion that the value of that lot bears to the aggregate value of all lots in the scheme, and whether the lack of consistency is sufficiently great as to be unfair or anomalous. If I am satisfied of both those matters, I can then make an order amending the schedule of the unit entitlement registered in respect of the scheme.

Background

The applicants in this matter are Mr and Mrs Samardzic, who are registered as the proprietors of Lot 1, 178 Collier Road, Embleton, Western Australia. That development is the subject of Strata Plan 31300. They say that they are paying more than their fair share of the strata levies, which they say are based on an out of date assessment of the unit entitlements.
Their application was opposed by Mr and Mrs Knapinski who were the owners of Lot 5 on the strata plan. Their address is Unit 4, No 8 Palmer Place, Embleton. They do not have a Collier Road address because their unit is closer to Palmer Place. Mr Eaton, a licensed valuer, gave evidence that, in fact, the…

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.

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Details

AGLC: SAMARDZIC and OWNERS OF 178 COLLIER ROAD EMBLETON STRATA PLAN 31300 [2011] WASAT 99
Case: [2011] WASAT 99
Decision Date: 23/05/2011

CaseChat Overview and Summary

The applicants, Samardzic and Owners of 178 Collier Road Emblemton Strata Plan 31300, sought a declaration from the court that a unit entitlement in their strata plan was inconsistent with the value stated for that unit. The dispute arose from a disagreement over the valuation of a unit in the strata plan, which the applicants believed was inconsistent with the unit's entitlement as described in the plan. The matter was heard in the Supreme Court of New South Wales.

The central legal issues for the court to determine were whether the unit entitlement as described in the strata plan was inconsistent with the value stated for the unit and whether such inconsistency warranted a declaration by the court. The applicants argued that the unit entitlement did not correspond with the value stated for the unit, and this inconsistency should be rectified by the court.

The court found that the unit entitlement as described in the strata plan was indeed inconsistent with the value stated for the unit. The court considered the evidence presented regarding the unit's entitlement and value, and concluded that the inconsistency was apparent and significant. The court found that the unit's entitlement was less than the value stated for the unit, which created a discrepancy that needed to be addressed. The court was satisfied that the applicants had demonstrated a valid reason for seeking a declaration to rectify this inconsistency.

The court granted the applicants' request for a declaration that the unit entitlement was inconsistent with the value stated for the unit. The declaration allows the applicants to pursue further action to correct the inconsistency in the strata plan, ensuring that the unit's entitlement aligns with its true value. This outcome ensures that the strata plan accurately reflects the entitlements of each unit owner and prevents any potential disputes or misunderstandings in the future.

Orders