SEARLE and THE OWNERS OF 116 MARINE PARADE, COTTESLOE - STRATA PLAN 13559
[2006] WASAT 323
•6 NOVEMBER 2006
SEARLE and THE OWNERS OF 116 MARINE PARADE, COTTESLOE - STRATA PLAN 13559 [2006] WASAT 323
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 323 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:1559/2006 | 25 OCTOBER 2006 | |
| Coram: | MS J HAWKINS (MEMBER) | 6/11/06 | |
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOYCE ELSIE SEARLE THE OWNERS OF 116 MARINE PARADE, COTTESLOE - STRATA PLAN 13559 |
Catchwords: | Upgrade of common property Works on common property |
Legislation: | Strata Titles Act 1985 (WA), s 17, s 17(1), s 35, s 35(1), s 35(1)(c), s 82, s 83, s 83(1), s 97, s 97(1), s 97(2), s 97(2)(a) |
Case References: | Sisto and The Owners of Glenway Gardens [2005] WASAT 282 Nil |
Orders | 1. That the application pursuant to s 97 of the Strata Titles Act 1985 (WA) be dismissed.,2. That the interim order halting construction upon 116 Marine Parade, Cottesloe, Strata Plan 13559 made on 10 October 2006 be revoked. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : SEARLE and THE OWNERS OF 116 MARINE PARADE, COTTESLOE - STRATA PLAN 13559 [2006] WASAT 323 MEMBER : MS J HAWKINS (MEMBER) HEARD : 25 OCTOBER 2006 DELIVERED : 6 NOVEMBER 2006 FILE NO/S : CC 1559 of 2006 BETWEEN : JOYCE ELSIE SEARLE
- Applicant
AND
THE OWNERS OF 116 MARINE PARADE, COTTESLOE - STRATA PLAN 13559
Respondent
Catchwords:
Upgrade of common property - Works on common property
Legislation:
Strata Titles Act 1985 (WA), s 17, s 17(1), s 35, s 35(1), s 35(1)(c), s 82, s 83,
s 83(1), s 97, s 97(1), s 97(2), s 97(2)(a)
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Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Self-represented
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
Sisto and The Owners of Glenway Gardens [2005] WASAT 282
Case(s) also cited:
Nil
(Page 3)
Summary
1 The applicant commenced two applications on 3 October 2006 in respect to an upgrade of common property at 116 Marine Parade Cottesloe, Strata Plan 13559. The applicant is an owner of Lot 11 of Strata Plan 13559.
2 The first application that was dealt with by this Tribunal was an application for an order to have the strata company cease construction work of the upgrade on the common property, pursuant to s 82 of the Strata Titles Act 1985 (WA). That application was granted by consent on 13 October 2006, at which time an order was made that the construction of fence around Lot 5 and along each side of the driveway on the common property of Strata Plan 13559 be halted until the applicant's application pursuant to s 97 of the Strata Titles Act 1985 be heard and determined.
3 At the first mention of these applications before the Tribunal on 6 October 2006, the applications were amended, as the applicant had joined Ms Pat Carmichael, another lot owner of Strata Plan 13559, who was a member of the Strata Council for the relevant strata plan.
4 As the applicant wished to bring her application against the strata company, the Tribunal amended her applications to substitute the strata company as the respondent. As a result of the first mention hearing on 6 October 2006, the applicant was ordered to serve a copy of the order of the Tribunal and her applications upon all other lot owners of 13559 Strata Plan. The Tribunal also ordered that the strata manager urgently provide copies of the order of the Tribunal dated 6 October 2006 and both applications to all owners of Strata Plan 13559 by no later than 12 October 2006.
5 Accordingly, the applicant's applications were the subject of a further hearing on 13 October 2006. At that hearing and the ultimate hearing on 25 October, the strata company was represented by Ms Carmichael, Mr Manolas and Ms Dobson. The minutes of an Extraordinary General Meeting of the strata company held on 9 October 2006 provided to the Tribunal indicated that the applicant's applications had been the subject of discussions at that meeting and Ms Carmichael, Mr Manolas and Ms Dobson were to represent the strata company. Ms Carmichael is the owner of Lot 14, Mr Manolas is the owner of Lot 5 and Ms Dobson was the nominated proxy of Mrs Kalaf, the owner of Lot 3, of Strata Plan 13559.
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6 As stated above, on 13 October 2006 construction upon 116 Marine Parade, Cottesloe was halted and the matter was listed for hearing on 25 October 2006, to deal with the applicant's application pursuant to s 97(1) of the Strata Titles Act 1985. The dispute raised by the applicant was in respect to an upgrade of common property at 116 Marine Parade, Cottesloe, Strata Plan 13559. The upgrade proposed by the strata company was to deal with the need to remove the unused pool and security problems that had arisen at the premises and in the area over time. The upgrade of the common property was the subject of numerous strata company meetings, as a result of which plans were commissioned from architect, Ian Harris. Those plans were the subject of several revisions over time.
7 The applicant appointed a proxy to appear on her behalf at the strata company meetings held in October 2005, December 2005 and March 2006 at which time the plans for the upgrade of the common property were discussed by the strata company. The applicant complained that the revised architect's plans were not provided to her prior to those meetings. The only plan the applicant confirmed that she had received was Ian Harris' original plan dated March 2005 and a second plan for the landscaping prepared by Nathan Greenhill. The plans for the upgrade of the common property that were ultimately approved unanimously by the strata company and approved by the Cottesloe Town Council showed a security fence that surrounded Lot 5 on Strata Plan 13559.
8 The applicant claimed that:
• she had not been given a copy of the revised architect's plans prior to the strata company meetings held on 11 October 2005, 8 December 2005 and 30 March 2006;
• that her proxy for these meetings had not kept her advised of the revisions to the architect's plans being discussed at these meetings; and
• that the minutes of the strata company meeting held on 8 December 2005 indicated that the strata company had resolved to have the architect's plans revised to show that the fence proposed to surround Lot 5 of Strata Plan 13559 be deleted.
9 As a result of these matters the applicant claimed that s 97 of the Strata Titles Act 1985 applied. However, the Tribunal found that the plans for the upgrade of the common property on Strata Plan 13559 that
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- were approved by the strata company and by the Cottesloe Town Council, were unanimously passed by the strata company. The Tribunal found that those plans included a security fence that surrounded Lot 5, with a gate to allow access to all lot owners to the common property in front of Lot 5. Accordingly, the Tribunal found that even if the applicant had been given the relevant revised plans of the architect and had instructed her proxy in respect to those plans for the strata company meetings at which they were approved, as the plans had been passed unanimously by the strata company, her vote against, would not have altered the outcome. Therefore s 97 of the Strata Titles Act 1985 was not applicable.
10 The Tribunal was also satisfied that the upgrade proposed by the strata company fell within the powers given to the strata company to repair and maintain the common property pursuant to s 35(1)(c) of the Strata Titles Act 1985.
11 The Tribunal therefore dismissed the application made pursuant to s 97(1) of the Strata Titles Act 1985. The Tribunal also ordered that the order halting the construction upon the common property made by the Tribunal on 10 October 2006 be revoked.
Issue
12 The applicant seeks an order in respect the common property of 116 Marine Parade Cottesloe, Strata Plan 13559 (the strata complex). Her application is made pursuant to s 97(1) of the Strata Titles Act 1985 (ST Act) as follows:
"To return the common property to its original state by permanent removal of all new improvements which were deleted and/or not agreed to by the Owners of 116 Marine Parade Cottesloe Strata Plan 13599. All costs of the removal of the fence and any costs accrued so far to be met by that/those person/people who improperly authorised construction of the fences without proper consultation with the owners of 116 Marine Parade Cottesloe Strata Plan 13559."
Grounds
13 The grounds set out in the application state as follows:
"The original plans were to include the deletion of the driveway fence and the fence off Overton Gardens as carried at the last EGM. Reference EGM Thursday 8 December 2006. The plans that were submitted to Cottesloe Council on the
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- 2nd of June 2006 were not presented to nor agreed to by the Owners of 116 Marine Parade Cottesloe Strata Plan 13559. The construction of the fence adversely affects the enjoyment of the common property by the owners as it restricts access to the common property and serves no purpose to improving security of the building. My proxy was at the time of the last AGM and EGM Jasmine Michelides. I have not been notified of any other ordinary meetings and given that I am not a member of the Council of Owners I cannot have a proxy to the council of owners meetings, particularly as she is not one of the owners of the 116 Marine Parade Cottesloe Strata Plan 13559".
Applicant
14 The applicant is Joyce Elsie Searle, the owner of Lot 11 of the strata complex.
Respondent
15 The respondent is the strata company of the strata complex. As a result of an Extraordinary General Meeting (EGM) of the strata company held on 9 October 2006, the applications made by the applicant were discussed. Further, Ms Carmichael, owner of Lot 14 of the strata complex, Mr Manolas, owner of Lot 5 of the strata complex and Ms Dobson, the proxy for her grandmother Mrs Kalaf, owner of Lot 3 of the strata complex, were appointed to represent the strata company.
Strata plan and relevant Act
16 The strata plan was registered on 10 March 1986 pursuant to the ST Act.
Description of parcel and building
17 The strata plan describes the building the subject of the plan as a multi-level brick iron and tile residential complex, comprising of 14 units situated on Lot 350 of Cottesloe Lot 40 on Diagram 66578.
Orders sought
18 The application asks for the common property to be returned to its original state by the permanent removal of all new improvements, which it is alleged were not agreed to by the Owners of 116 Marine Parade, Cottesloe and for all costs of the removal to be met by those persons who improperly authorised construction of the fences without
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- proper consultation with the owners of 116 Marine Parade, Cottesloe. This order is sought pursuant to s 97 of the ST Act.
19 The applicant, however, has also raised in her grounds that the construction of the fence off Overton Gardens and the driveway fence adversely affects the enjoyment of common property. This appears to relate to a possible claim under s 83 and s 35 of the ST Act.
History
20 The applicant commenced two applications in respect to an upgrade of common property at the strata complex on 3 October 2006.
21 The first application that was dealt with by this Tribunal, was an application for an order to have the strata company cease the construction work on the common property pursuant to s 82 of the ST Act. That application was granted by consent on the 13 October 2006, at which time an order was made that the construction of fence around Lot 5 of the strata plan and along each side of the driveway on the common property of strata complex, be halted until the applicant's application pursuant to s 97 of the ST Act be heard and determined.
22 At the first mention of these applications before the Tribunal on the 6 October 2006, the applications were amended as the applicant had joined Ms Pat Carmichael as the respondent.
23 As the applicant wished to bring her application against the strata company, the Tribunal amended her applications to substitute the strata company as the respondent. As a result of the first mention hearing on the 6 October 2006 the applicant was ordered to serve a copy of the order of the Tribunal and her applications upon all other lot owners of 13559 Strata Plan. The Tribunal also ordered, that the strata manager, urgently provide copies of the order of the Tribunal dated the 6 October 2006 and both applications, to all owners of Strata Plan 13559 by no later than 12 October 2006.
24 Accordingly, the applicants’ application pursuant to s 97 of the ST Actwas the subject of a further hearing on 13 October 2006. At that hearing, and the ultimate hearing on the 25 October the strata company was represented by Ms Carmichael, Mr Manolas and Ms Dobson.
25 As a result of the hearing on the 13 October 2006 the matter was listed for hearing on 25 October 2006 to deal with the applicant's application pursuant to s 97(1) of the ST Act.
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Applicant's case
26 The documents attached to the applicant's application include the minutes of an EGM held on 8 December 2005, a letter from Mrs Searle to Realmark Pty Ltd and Minutes of an Annual General Meeting (AGM) of the strata company held on 30 March 2006.
27 The applicant's application states that the original plans were to include the deletion of the driveway fence and the fence off Overton Gardens and relies on the EGM minutes of 8 December 2005. She claims that the plans submitted to Cottesloe Town Council on 2 June 2006 were not presented to or agreed to by the owners of the strata company. In particular, she claims that the EGM minutes of the meeting on 8 December 2005, indicate that the plan for the upgrade of the common property was to be revised to "remove intercom, delete the driveway security fence, remove fence off Overton Gardens". As such, she is claiming that the fence that has been partly constructed, around Lot 5 and along both sides of the driveway entrance of the strata complex has not been approved. She claims that she never received a copy of the plans that the Cottesloe Town Council approved for the upgrade of the common property in June 2006. The applicant submits that although she appointed a proxy for the relevant meetings of the strata company in October and December 2005 and March 2006, she only ever gave her approval to her proxy for the upgrade of common property in respect to a plan prepared by Nathan Greenhill (the concept courtyard plan).
28 She also claims that the construction of the fence adversely affects the enjoyment of the common property and does not improve security.
29 The applicant therefore is claiming, that part of the current construction that is proposed for the common property of the strata complex and in particular the fence proposed to surround Lot 5 was not authorised by the strata company.
30 The application is made pursuant to s 97 of the ST Act. That provision states:
"(1) Where, pursuant to an application by a proprietor or first mortgagee of a lot for an order under this section, the State Administrative Tribunal considers that the provisions of this Act have not been complied with in relation to a meeting of the strata company, the State Administrative Tribunal may, by order -
- a) invalidate any resolution of, or election held by, the persons present at the meeting; or
b) refuse to invalidate any such resolution or election.
- (2) The State Administrative Tribunal shall not make an order under subsection (1) refusing to invalidate a resolution or election unless it considers -
a) that the failure to comply with the provisions of this Act did not prejudicially affect any person; and
b) that compliance with the provisions of this Act would not have resulted in a failure to pass the resolution, or have affected the result of the election, as the case may be."
(a) "83(1) The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme on any person entitled to make application under this subsection or on the council or the chairman, secretary or treasurer of the strata company."
(b) "35(1) A strata company shall - … keep in good and serviceable repair, properly maintain and, where necessary, renew and replace -
- (i) the common property, including the fittings, fixtures and lifts used in connection with the common property; and
(ii) any personal property vested in the strata company
and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause."
- (c) "17(1) Common property shall be held by the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots."
Respondent's case
32 The strata company filed a book of documents with the Tribunal on 20 October 2006. In that book of documents the respondentstates that the aim of their case is to demonstrate that correct procedure has been followed and that there was no improper authorized construction of the fences without consultation with the owners of 116 Marine Parade Cottesloe, Strata Plan 13559, and that the plans approved by the Cottesloe Town Council had full approval of the strata council. The respondent's written submission stated that there has been a concern for some years by the strata company in respect to the dilapidated state of the swimming pool and other aspects of the common property of the strata company. The respondent claims that the strata company has also been concerned with the urgent need for security, due to an increase in intimidating loutish and violent behaviour. As a result, an upgrade of the common property has been the subject of ongoing discussion by the strata company since 2004. Due to those ongoing discussions, the respondent claims that the current plans that have received Cottesloe Town Council approval have been the subject of strata company meetings and been approved by the strata company, before the construction commenced. The respondent argues that the applicant has been aware of the current plans and through her proxy, who attended the relevant strata company meetings and who agreed to the current plans.
Issues
33 Upon hearing the parties and considering the documents that have been filed, it appears that the following issues need to be determined in this matter:
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- (1) What plan for the upgrade of the common property of the strata complex has been approved by the strata company and when?
(2) Was the applicant given a copy of the approved plan and did she give her consent to the approved plan?
(3) How many votes were taken at the strata company meetings which approved the plan for the upgrade of the common property?
(4) What is the meaning of the resolution on page 2, paragraphs 2 and 3 of the minutes of the EGM of the strata company held on 8 December 2005?
(5) Does s 97 of the ST Act apply in this case?
(6) Does the fencing proposed to be constructed around Lot 5 improve security and come within the strata company's duties under s35 (1)(c) of the ST Act?
Evidence
34 The upgrade of the common property of the strata complex has been the subject of ongoing discussion by the strata company for some time. It is useful, therefore, to summarise the evidence before the Tribunal in a chronological order as follows:
• AGM 31 March 2005 - The respondents have stated in their written submission that plans for the upgrade of the common property of the strata complex were presented to the owners at this meeting as drawn by architect Ian Harris. Those plans were included in the respondent's book of documents and were dated March 2005. The aerial plan dated March 2005 shows that a new fence was proposed to join the existing fence on the eastern boundary of the strata complex and to run northward on the eastern boundary and then westward on the northern boundary. This plan effectively showed that the north eastern corner of the strata complex would be bounded by fence and that sliding security gates would be installed at the car park entrance on the northern side. This plan clearly shows the fence surrounding the eastern and northern aspects of Lot 5 of the strata complex. It did not, however, at that time, show that a fence would run along the western aspect of Lot 5 and therefore fully enclose Lot 5.
- The applicant confirmed in her evidence that she had seen a smaller version of the aerial plan prepared by Ian Harris dated March 2005.
- • Minutes of AGM 31 March 2005 - These minutes reveal that a quorum of 10 out of the 14 lot owners were present at the meeting, including the applicant in person. One of the items discussed was the pool area. A resolution was passed that the pool be immediately filled and the area turfed. It was further agreed that Mr Manolas would supply a plan for the rejuvenation of the pool area and would be circulated to all owners for input and an EGM called to resolve the matter.
• Minutes of EGM 4 July 2005 - This meeting was also attended by the Applicant in person. One of the lot owners Mrs Kalaf was represented by her granddaughter, Ms Michelides. The minutes note that a quorum existed. At this meeting the upgrade of the pool area was further discussed. By that time a quote had been obtained from a builder as to the costings in relation to Ian Harris' plans dated March 2005 as presented at the AGM on 31 March 2005. The respondent's representatives explained that the quotation from the builder was considered too expensive.
A witness statement was filed by Ms Michelides, the granddaughter of Mrs Kalaf. In that statement Ms Michelides explained that she objected to the proposed quote and the plan as her grandmother considered it was too expensive and that the proposed plan for the upgrade showed that the location of the bin area would result in her viewing this area directly from her balcony. Ms Michelides confirmed that the plan at that time showed a perimeter wall around the whole of the strata complex. Ms Michelides recalls that the applicant was present at that meeting and was also alarmed at the cost of the proposed work and in particular the cost of replacing the roof tiles on her balcony which she considered did not need replacing. Ms Michelides proposed that the scope of the work be broken down into two stages, one for the building work and one for the landscaping.
Minutes of the EGM on 4 July 2005 state that it was resolved that the plans would be re-drawn by Ian Harris
- and the required work requoted. Ms Michelides was nominated as one of the persons to obtain a landscaping plan.
- • August 2005 - The respondent's representatives advised that by 30 August 2005 the proposed builder, Salona Nominees Pty Ltd, prepared a revised quote. This was still considered to be too expensive.
• September 2005 - Further, by about September 2005 a concept courtyard plan drawn by Nathan Greenhill was obtained by Ms Michelides. She circulated this plan, along with an explanatory note to all lot owners of the strata complex, including to the applicant. The respondent's representatives gave evidence that a copy of Ian Harris' plans dated March 2005 had been given to Nathan Greenhill before he drew up his plan for the courtyard area.
By September 2005 a revised aerial plan from Ian Harris, dated September 2005 was also prepared. This plan showed a new position for the bins, no security gates for the driveway car park entrance from the northern side of the strata complex and further continued to show a perimeter fence on the north eastern boundary of the strata complex, but with a change. The plan now showed the fencing running along both sides of the driveway entrance from the northern side of the strata complex. This was presumably because there was no longer a security gate across the boundary entrance on the northern side of the strata complex, as the roller door to the car park was to prevent entry. This plan also showed a gate from the north eastern corner into the common property area, now shown as fenced, in front of Lot 5 of the strata complex. The respondent's representatives have made clear that all lot owners are to be provided with a key to the gate to access the area in front of Lot 5 at all times. The result was that the aerial plan from Ian Harris dated September 2005 showed a fence, which completely surrounded Lot 5 of the strata complex.
The applicant gave evidence that she never received a copy of Ian Harris' aerial plan of the strata complex dated September 2005.
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- • 9 October 2005 - In the statement provided by Ms Michelides she has explained that she met with the applicant on the 9 October 2005 at her request to discuss the concept courtyard plan. According to Ms Michelides the applicant advised that she liked it. During that same meeting the applicant asked Ms Michelides to represent her until the proposed works were completed. Importantly the applicant at that meeting told Ms Michelides that she did not like the idea of the construction of a fence on the eastern end as she considered that this would enclose the space for the sole use of Mr Manolas the owner of Lot 5 and would unfairly increase the value of his property.
The respondents have filed a document that has been described as notes for the October 2005 meeting given to Ms Michelides by the applicant. The only issue raised in this document in respect to the perimeter fence was the placement of an intercom on the boundary. At the hearing of this matter the applicant could not recall whether she had given those notes to Ms Michelides. She did however confirm that she did appoint Ms Michelides to be her proxy and that Ms Michelides attended as her proxy for the strata company meetings held on 11 October 2005, 8 December 2005 and 30 March 2006. She made clear, however, that at no time during that period did she receive revised copies of Ian Harris' plans or discuss any such plans with Ms Michelides. She maintained throughout her evidence, that the only plans from Ian Harris she had ever seen for the upgrade of the common property, was a small version of his March 2005 aerial plan of the strata complex. She did say that she had seen Nathan Greenhill's concept courtyard plan and had approved of that plan and told Ms Michelides that she approved of that plan.
• EGM 11 October 2005 - a quorum was present for this meeting. The applicant did not attend and the minutes reveal that she was represented by Ms Michelides. The respondent's representatives stated that at this meeting the concept courtyard plan was presented. The minutes reveal that the concept courtyard plan was accepted in principle, with some amendments, including the gate and the side fence to be metal. Further, at item 9 of the minutes it was stated that the security fence was to be deferred. The
- respondent's written submissions explain that advice was needed for appropriate materials to be selected for the security fencing. Those submissions also explain that following the October EGM, Ms Michelides met with Mr Ian Harris, the architect, on site, to instruct on the material selection and extent of work to be carried out as agreed at the October EGM. This is corroborated by Ms Michelides' statement in which she advised that following a directive from the October meeting she did meet with Ian Harris on site on 18 November 2005 to brief him in respect to a revised perimeter wall with open aspect fencing as required by the Cottesloe Town Council.
- • November 2005 - A further plan was then prepared by Ian Harris showing the elevations of the strata complex dated November 2005. These plans show the elevation drawings for the strata complex and in particular show the position or security fencing around the north east perimeter of the strata complex and running along the driveway of the strata complex .
• 8 December 2005 EGM - A quorum of lot owners were present including the applicant who was represented by Ms Michelides. Under the heading of Upgrade of Common Property, the minutes state as follows:
"Jasmine and Helen tabled a plan from Ian Harris Architects showing a new gate, Intercom, additional fencing at the front, flush mounted letterboxes, driveway security gate, new galvanised and powder coated steel fence with brick piers on Overton Garden.
- The following was put:
"Plan to be revised by Ian Harris - Remove Intercom, delete the driveway security fence, remove fence off Overton Gardens. Strata Manager to talk to Ian Harris and Ian Harris to summit plans to council."
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- the Cottesloe Town Council, does not accord with the above resolution. In particular the applicant suggests that the above resolution does not authorise a fence to surround Lot 5 of the strata complex.
36 The respondent's representatives gave evidence to explain what was meant by the above resolutions as follows:
• "Remove Intercom" - it was explained that this was to ensure that any plan did not show an intercom at the boundary fence of the strata complex as shown in Ian Harris' aerial plans dated March 2005.
• "Delete the driveway security fence" - it was also explained that this was to ensure that the plans did not show security gates across the car park driveway of the strata complex as originally shown on Ian Harris's aerial plans dated March 2005.
• "Remove fence off Overton Gardens" - was to cover the removal of the truncated or angled wall which currently exists on the northern boundary of the strata complex.
37 The respondent's representatives made clear that the minutes of the strata company meetings were not as detailed as they could have been. They insisted that the suggested changes referred to in the resolution were not to mean that the security fence proposed for the eastern and northern boundaries of the strata complex were to be removed. Further they made clear that at the EGM of 8 December 2005, Ian Harris' aerial plans of September 2005 and elevation plans of November 2005 were unanimously approved of by the strata company at that meeting.
• AGM March 2006 - The minutes of that meeting reveal that there was a quorum, with the applicant again not attending in person but being represented by Ms Michelides. At that meeting it was resolved that quotes for fencing were obtained and the quote from AusSecure was approved. It was also resolved that the work on the upgrade of the common property should commence as at 1 May 2006.
38 Again the respondent's representatives made clear that the strata company unanimously agreed to proceed with the upgrade of the common property in accordance with Ian Harris' plans of September and November 2005.
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39 These plans clearly showed a security fence surrounding Lot 5 of the strata complex.
40 The respondent's written submissions stated that the quotation from AusSecure was unanimously accepted and covered all areas as detailed in the elevation drawings of the architect, dated November 2005.
• 2 June 2006 - Ms Carmichael, on behalf of the respondent, gave evidence that the plans that were approved by the Cottesloe Town Council were those of Ian Harris dated September and November 2005.
• 25 July 2006 - In a letter from the strata manager of the strata complex, the lot owners were advised that work was to commence following the recent AGM, including additional fencing/security gate. It is unfortunate that this letter did not clearly identify the works to be carried out by reference to any of the plans discussed at the relevant strata company meetings.
• Security - the applicant gave evidence that she did not consider that security was a great problem for the strata complex and did not consider that it warranted a security fence. Ms Carmichael, however explained that security issues had become a problem over the years in the area. She explained that she sat as a member of the prevention of crime committee for the Cottesloe Town Council. She highlighted that crime prevention was a growing problem and noted at least four instances of intrusions in the strata complex. She confirmed that security had been a concern of the strata company when deciding to upgrade the common property to include a security fence.
Findings on the issues
(1) What plan was approved by the strata company for the upgrade of the common property?
41 The applicant has sought to dispute the construction of the boundary fence in the north eastern corner of the strata complex, and in particular the fence that is to surround Lot 5 of the strata complex. She relies on the minutes of the EGM of the strata company dated 8 December 2005 to suggest that these support her view that this fence was not approved by the strata company.
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42 The upgrade of the common property has been the subject of numerous meetings of the strata company, some of which the applicant did not attend in person, but was represented by Ms Michelides. It may well be that her not attending the meetings in person has contributed to her bringing this application. Further, it is clear that the relevant minutes of the strata company meetings are not as fulsome as they could have been.
43 In early 2005, the strata company sought plans from Ian Harris, architect, for the upgrade of the common property of the strata complex. The reason for this upgrade was to cover a few problems. One was the filling in of the pool area which was not in use and was an eyesore. The other was to deal with the ongoing security problems.
44 As a result, a plan was commissioned by Ian Harris for the upgrade of the common property. Those plans have been the subject of several revisions. Ian Harris' aerial plan dated March 2005 showed a perimeter fence around the eastern boundary and the northern boundary of the strata complex. That plan was discussed at the AGM of the strata company on 31 March 2005. The applicant conceded that she had seen a small version of this plan at that meeting. A quote was then obtained for the construction of the work, which was discussed at the EGM of the strata company held on 4 July 2005. The applicant attended both meetings in person. Due to objections to the proposed building costs, it was proposed that the upgrade be broken down into two stages, one for the building work, and one for the landscaping. Ms Michelides was nominated to obtain the landscaping plan. It was also resolved that Ian Harris would revise the March 2005 plan.
45 Accordingly, by September 2005, Ian Harris had redrawn the aerial plan, which showed the security fencing around the north eastern corner of the strata complex and along the eastern and western sides of the driveway. The concept courtyard plan was also obtained. Ms Michelides distributed the concept courtyard plan to all lot owners and then discussed this with the applicant at her request on 9 October 2005. It was at that meeting that the applicant appointed Ms Michelides as her proxy. The applicant conceded that Ms Michelides attended the strata company meetings on her behalf on 11 October 2005, 9 December 2005 and 30 March 2006. These plans were then discussed at the EGM of the strata company on 11 October 2005. The concept courtyard plan was accepted in principle, with amendments to show the side fencing to be in metal. The minutes of that meeting also reveal that a decision as to the security fencing was deferred and this was to enable further information as to the
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- be materials to be obtained. Ms Michelides was asked to meet with Ian Harris to discuss selection of materials and to brief him that the perimeter fencing needed to be an open aspect as this accorded with Cottesloe Town Council's requirements.
46 Accordingly, a further plan of the elevations for the upgrade of the strata complex, dated November 2005, was prepared by Ian Harris.
47 This new plan was presented to a further EGM of the strata company, held on 8 December 2005. However, a revision was proposed. Unfortunately the minutes of this meeting do not fully explain the revision.
48 The minutes read:
"Plan to be revised by Ian Harris - Remove Intercom, delete the driveway security fence, remove fence off Overton Gardens."
49 These revisions were explained by the respondent's representatives, that the removal of driveway fence should have read removal of driveway gate. This was to ensure that as per Ian Harris' March 2005 plan, no security gates at the driveway entrance were to be shown. The reason for this being that the security fencing was to run on the eastern and western boundaries of the driveway of the strata complex. The words "remove fence off Overton Gardens" meant that the plans were to show the removal of the current truncated or angled fence on the northern boundary of the strata complex.
50 Those present at the hearing of this matter who represented the respondent have made it clear that the current plan for the upgrade of the common property approved by the Cottesloe Town Council were Ian Harris' plans dated September and November 2005. Those plans were unanimously approved by the strata company at the relevant meetings of 11 October 2005, 8 December 2005 and 30 March 2006. Unfortunately these were the meetings that the applicant did not attend in person but by proxy. Those plans cleanly showed a fence to surround Lot 5 of the strata complex.
51 The Tribunal accepts, therefore, that the current plans which show the fence around Lot 5 of the strata complex were approved unanimously by the strata company at the relevant meetings held 11 October 2005, 8 December 2005 and 30 March 2006.
(Page 20)
(2) Was the applicant aware of the plans as approved of by the strata company?
52 The applicant was aware of Ian Harris' original plan dated March 2005 which, even at that stage, showed a fence along the eastern and northern boundaries of the strata complex. She was not, however, aware of Ian Harris' revised plans dated September and November 2005. This appears to have occurred because the plans don't appear to have been distributed to the lot owners prior to the relevant strata company meetings but were shown at the meetings. The applicant did not attend the relevant meetings of 11 October 2005, 8 December 2005 and 30 March 2006 at which those plans were discussed and approved.
(3) How many votes were taken at the strata company meetings at which the plans were approved?
53 The Tribunal accepts the respondent's representatives' evidence that the plans that were approved of for the upgrade of the common property were passed by unanimous resolutions. The plans were approved at the strata company meetings held on 11 October 2005, 8 December 2005 and 30 March 2006.
(4) What is the meaning of the resolution on page 2, paragraphs 2 and 3 of the EGM held 8 December 2005?
54 The Tribunal accepts the explanation given by the respondent's representatives in respect to these minutes. They made it clear that these minutes were not as detailed as they could have been. Further, the resolution in question was never intended to mean that the security fencing on the north eastern corner of the strata complex and surrounding Lot 5 was to be removed from the plan for the up grade of the common property. The reference to "Delete driveway security fence" was to ensure that Ian Harris' plans did not show a driveway security gate. Further "Remove fence off Overton Gardens" was to ensure that the plans were to cover removal of the current truncated/angled fence on the northern boundary of the strata complex.
(5) Does s 97 of the ST Act apply?
55 It is clear that the applicant did appoint Ms Michelides to act as her proxy for the meetings of 11 October 2005, 8 December 2005 and 30 March 2006. Ms Michelides gave evidence that she had agreed to be the applicant's proxy until the proposed construction was completed.
(Page 21)
56 The applicant has tried to suggest that there were limits on the power given to her proxy.
57 It is unnecessary in the circumstances to determine whether that is the case. If the applicant was not given the plan that was approved by the strata company and did not give her proxy power to vote in support of the plan that proposed fencing the subject of this dispute, it may be said that this results in non-compliance in the ST Act, as envisaged by s 97 of that Act. The issue for determination under s 97 of the ST Act is whether this Tribunal can make an order invalidating any resolution of the strata company which approved the disputed plan.
58 Section 97 of the ST Act makes clear that it may invalidate any resolution of the strata company where the provisions of the Act have not been complied with in relation to a meeting of the strata company. The Tribunal however, must not invalidate any such resolution unless it considers that the failure to comply with the provisions of the Act did not prejudicially affect any person and that compliance would not have resulted in a failure to pass the resolution.
59 Obviously in this case it could be said that if the applicant had not received a copy of the plans that are disputed, and if her proxy was acting outside her powers, then s 97(2)(a) of the ST Act applies, as that failure prejudicially affected the applicant, as she did not attend the meetings where the plans were discussed and therefore was not able to properly brief her proxy to object to the plans.
60 However, s 97(2) requires the Tribunal to be satisfied not only that non-compliance with the ST Act may prejudicially affect any person, but also that any compliance with the provisions of the ST Act would not have resulted in a failure to pass the resolution. The Tribunal accepts that the current plans, the subject of this dispute, were unanimously agreed to by the strata company. The Tribunal is therefore not satisfied that even if the applicant had been provided with a copy of the relevant plans prior to the strata company meetings at which they were discussed and approved, and she had the chance to vote upon those plans, that it would have resulted in a failure of the resolution to pass the plans. Accordingly, the Tribunal is not satisfied that s 97 applies in this case.
(Page 22)
(6) Does the fencing proposed to be constructed around Lot 5 of the strata complex fall within the strata company's duties under s 35(1)(c) of the ST Act?
61 The applicant has complained that the proposed fencing serves no useful purpose and does not enhance the security of the building.
62 It is open, however, for a strata company to undertake upgrades of common property under the provisions of s 35(1)(c) of the ST Act. The decision of Sisto and The Owners of Glenway Gardens [2005] WASAT 282, to which the parties were referred, indicated that the proper control and management of common property included taking steps which included the possible erection of structures upon common property to ensure that it is maintained and presented in a way which accords with the reasonable expectations of the proprietors as a whole and for the enhancement of security. It is clear that when the strata company decided not to have security gates at the northern boundary at the entrance of the car park, as shown on Ian Harris' outlined plans of March 2005, then some other fencing was required to fully enclose the strata complex. This resulted in the security fencing along the eastern and western sides of the driveway being proposed and agreed upon by the strata company. This does result in the area in front of Lot 5 of the strata complex being fully enclosed. However there is to be a gate to that area and each lot owner will have a key to access the area. This enclosure might have been avoided if security gates had been placed across the northern boundary across the driveway into the strata complex. The majority of the strata company, however, considered the current proposal warranted. On that basis the Tribunal is satisfied that the proposed fencing to surround Lot 5 of the strata complex is a proper exercise of the strata company's repair and maintenance duties under s 35(1)(c) of the ST Act.
Orders
1. That the application pursuant to s 97 of the Strata Titles Act 1985 (WA) be dismissed.
2. That the interim order halting construction upon 116 Marine Parade, Cottesloe, Strata Plan 13559 made on 10 October 2006 be revoked.
(Page 23)
I certify that this and the preceding [62] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J HAWKINS, MEMBER
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