SEARES and THE OWNERS OF MATILDA UNITS STRATA PLAN 33443

The appeal was brought by the owners of a unit in the Matilda building against Seares, the body corporate of the strata scheme. The appellants objected to the respondents removing a balcony balustrade which formed a boundary of part of their lot. The respondents argued that the removal of the balustrade was necessary to comply with safety standards and to facilitate a planned renovation of the building. The case was heard in the Supreme Court of Western Australia.

The central legal issue before the court was whether the body corporate could lawfully approve the removal of the balustrade under section 7 or section 85 of the Strata Titles Act 1985 (WA). The appellants argued that the balustrade was a structural element of their lot and its removal would alter the boundaries of their property, which required their individual consent. The respondents contended that the balustrade was not a structural element but rather a common property item, and its removal could be approved under the provisions of the Act without the appellants' consent. The court had to determine which interpretation was correct and whether the body corporate's decision was in accordance with the law.

The court found that the balustrade was a structural element of the appellants' lot and not common property. The removal of the balustrade would alter the boundaries of their property, and therefore required their individual consent under section 7 of the Act. The court held that the body corporate did not have the authority to approve the removal of the balustrade without the appellants' consent. The court also rejected the respondents' argument that the removal was necessary to comply with safety standards, finding that there was no evidence to support this claim. The appeal was allowed, and the decision of the body corporate was quashed.

The final orders of the court were that the decision of the body corporate to remove the balustrade was invalid and of no effect. The appellants were entitled to be compensated for any damage caused to their lot as a result of the removal of the balustrade. The respondents were ordered to reinstate the balustrade to its original condition or, if that was not possible, to a condition that did not alter the boundaries of the appellants' lot. The respondents were also ordered to pay the appellants' costs of the appeal.