SEGHEZZI and THE OWNERS OF 9 THE AVENUE CRAWLEY STRATA PLAN 27842
[2013] WASAT 92
•20 JUNE 2013
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: SEGHEZZI and THE OWNERS OF 9 THE AVENUE CRAWLEY STRATA PLAN 27842 [2013] WASAT 92
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 20 JUNE 2013
FILE NO/S: CC 1975 of 2012
BETWEEN: ANNE MARIA SEGHEZZI
Applicant
AND
THE OWNERS OF 9 THE AVENUE CRAWLEY STRATA PLAN 27842
Respondent
Catchwords:
Strata titles - Application brought under a statutory provision in relation to which applicant was not entitled to relief - Opportunity afforded to applicant to amend application after initial determination on the documents - Application opposed on various grounds including that original decision defective on procedural fairness grounds - Further that proposed amendment could only be fairly addressed by hearing of contested evidence - Whether respondent would suffer injustice if application to amend granted - Effect of events subsequent to filing of submissions in initial determination on documents
Legislation:
State Administrative Tribunal Act 2004 (WA), s 9, s 32(5), s 77(2)
State Administrative Tribunal Rules (WA), r 15
Strata Titles Act 1985 (WA), s 35(1)(b), s 79(2), s 81, s 83, s 97, s 97(1), Pt VI, Sch 2 Bylaw 12(d)
Result:
Application to amend refused
Proceeding dismissed
Summary of Tribunal's decision:
The applicant applied to the Tribunal under s 97 of the Strata Titles Act 1985 (WA) seeking an order that a resolution reflecting a proposal to create two additional car parking bays within the strata parcel to which the proceedings relate be invalidated. The application was determined on the documents. The Tribunal upheld the applicant's contention that the proposal was not made for the benefit of all the proprietors in breach of s 35(1)(b) of the Strata Titles Act 1985.
As the substantial merits of the dispute had been determined in favour of the applicant, the Tribunal raised whether the applicant should be afforded an opportunity to apply to amend the application to apply for an order under s 83 of the Strata Titles Act 1985 that the proposal was contrary to s 35(1)(b) of that legislation and that the respondent was accordingly not entitled to proceed with the proposal.
The notified persons who opposed the application objected to the amendment of the application. In doing so, they raised a number of procedural fairness grounds, many of which were not relevant to the objection but might be relevant to any application for leave to appeal the decision. The Tribunal considered and dealt with a number of these objections because it was also submitted that if the amendment were to be refused, the notified persons would have an opportunity to present oral evidence. The Tribunal considered and rejected all of these submissions.
However, the submissions reflected that an incident had occurred subsequent to the filing of submissions but prior to the original determination on the documents which might impact upon the conclusion reached that the proposal could not be justified on the grounds of safety and security.
The Tribunal concluded that if there were a finding that there were sufficient safety and security concerns, this might outweigh the detriment to the applicant, such that the proposal might be considered to be for the benefit of all the proprietors.
With some reluctance, the Tribunal refused the application to amend so that the substantial merits of the dispute remaining between the parties could be determined in a new application brought under s 83 of the Strata Titles Act 1985. The applicant's application under s 97(1) of the Strata Titles Act 1985 was therefore also dismissed.
Category: B
Representation:
Counsel:
Applicant: Selfrepresented
Respondent: Ms M Metzger (Acting as Agent)
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Banning and The Owners of 106 Terrace Road Perth ‑ Strata Plan 6289 [2006] WASAT 296
Fraser and The Owners of Morgan Mews, Strata Plan 453 [2011] WASAT 102
Grant and The Owners of Rosneath Farm – Strata Plan 35452 [2006] WASAT 162
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Seghezzi and The Owners of 9 The Avenue Crawley Strata Plan 27842 [2013] WASAT 53
State of Queensland & Anor v J L Holdings Pty Ltd [1996 ‑ 1997] 189 CL 146
REASONS FOR DECISION OF THE TRIBUNAL:
Background to application to amend
The applicant, Ms Seghezzi, applied to the Tribunal under s 97 of the Strata Titles Act 1985 (WA) (ST Act) seeking an order that a resolution reflecting a proposal to create two additional car parking bays within the strata parcel to which these proceedings relate be invalidated.
On 17 April 2013, the Tribunal published its written reasons for decision: see Seghezzi and The Owners of 9 The Avenue Crawley Strata Plan 27842 [2013] WASAT 53 (Seghezzi No 1). The Tribunal concluded that the alterations to common property involved in creating the two additional car parking bays could not be justified as being necessary on grounds of safety and security. However, the Tribunal found that, properly characterised, the work fell within the scope of the respondent's obligation to control and manage the common property. On the material before it, the Tribunal concluded that the proposal was not for the benefit of all the proprietors, contrary to the requirements of s 35(1)(b) of the ST Act.
Notwithstanding this last finding in favour of Ms Seghezzi, the Tribunal concluded that she was not entitled to the relief sought under s 97 of the ST Act for an order invalidating the resolution. This was because the relief available under s 97 of the ST Act applies only where a provision of the ST Act has not been complied with in relation to the process of convening and conducting a meeting of the strata company. There had been no challenge of that process. In the course of coming to the above conclusion, the Tribunal was able to reconcile particular provisions of the ST Act on the basis that a mechanism remained for the resolution of the type of dispute in question under s 83 of the ST Act.
The Tribunal therefore raised, having regard to its stated objective to achieve the resolution of disputes according to the substantial merits of the case with as little formality and technicality as is practicable, whether Ms Seghezzi should be permitted to amend the application to seek relief under s 83 of the ST Act. Programming orders were made to afford an opportunity to Ms Seghezzi to make an application to amend and for the filing of any opposing submissions.
Ms Seghezzi has duly applied to amend the application to seek an order that the proposal to create two additional car parking bays set out in proposal 1 of the minutes of the extraordinary general meeting held on 15 May 2012 is contrary to s 35(1)(b) of the ST Act, as it is not for the benefit of all the proprietors, and that the respondent is accordingly not entitled to proceed with the proposal.
The respondent strata company has not opposed the application to amend, no doubt because of the conflict between the various members of the company. Opposing submissions have, however, been received on behalf of the owners and tenants of Lots 4, 5 and 6, all of whom filed submissions in the earlier proceedings.
The criteria to apply
The case law on the principles to be applied to the consideration of an amendment to pleadings within the court system has evolved considerably over time: see the decision of the High Court in the State of Queensland & Anor v J L Holdings Pty Ltd [1996 ‑ 1997] 189 CL 146 and, in particular, the discussion by Justice Kirby at [164] and following. While Justice Kirby outlines a number of approaches to pleading amendments, it is particularly pertinent to note his Honour's statement of the basic principle controlling the exercise of a power granted by statute, or under the authority of a statute, being that the power must be exercised for the purpose which was afforded by the legislature. The State Administrative Tribunal Act 2004 (WA) (SAT Act) contains no express provision relating to amendment, but s 32(5) provides that, to the extent that the practice or procedure of the Tribunal is not prescribed by or under the SAT Act or an enabling Act, it is to be as the Tribunal determines. Rule 15 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) permits a person who has made an application to the Tribunal to apply in an approved form to amend the grounds or reasons specified in the application. The Tribunal may, at any time before making a final decision, grant such an application.
In this matter, Ms Seghezzi has not applied to amend the grounds or reasons for the application. It is only the order sought which she seeks to amend.
The purpose for which any power to amend is exercised must be to further the objects of the Tribunal as set out in s 9 of the SAT Act, being, relevantly:
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties[.]
In order that the Tribunal achieve the resolution of a dispute fairly, it must necessarily follow that an application should not be granted if to do so would be to cause injustice to any of the other participants in the proceedings.
In this instance, the need for the amendment flows from the processes of the Tribunal which generally provide for a separate application form under every section of each enabling Act. While there are no doubt good technical reasons for this procedure facilitating the completion of applications downloaded over the internet, often by laypersons, it does have some unfortunate consequences, particularly in relation to resolution of strata disputes. The ST Act is not an easy piece of legislation to be applied by laypersons. The disputes resolution provisions set out in Pt VI of the ST Act are generally very specific. Sometimes several sections are potentially applicable to a particular problem. The unfortunate litigant has to make an election at an early, and sometimes ill-informed, stage. Very often, the incorrect section is adopted, and therefore the wrong application form completed. Usually this will be detected and corrected at the first directions hearing. Sometimes, as in this case, an error does not become apparent until well into the hearing or determination of the matter. The difficulty is compounded by s 81 of the ST Act which empowers the Tribunal to make an order sought by the applicant and to make an order expressed in terms different from the order sought, so long as it does not differ in substance from the order sought.
In this case, the order sought was expressed to be pursuant to s 97(1) of the ST Act, invalidating the minutes of an extraordinary general meeting of the respondent held on 15 May 2012. As the Tribunal found, it could not make such an order, notwithstanding that it found that the material ground relied on by Ms Seghezzi had been made out, that the decision, reflected in the resolution, had not been made for the benefit of all the proprietors (as required by s 35(1)(b) of the ST Act).
In these circumstances, the reasons for the amendment require no explanation from Ms Seghezzi. The amendment is to overcome a technicality and to enable the Tribunal to make an effective order based on the findings it made in Seghezzi No 1. Accordingly, whether or not the amendment should be permitted will depend upon whether the submissions opposing the amendment demonstrate that an injustice would result if the application were to be granted.
Consideration of the grounds of opposition
The opposing submission raises at the outset a concern that the earlier decision in Seghezzi No 1 did not accord the owners and tenants of Lots 4, 5 and 6 procedural fairness. This was because the applicant filed a replying submission on the last day permitted by the Tribunal's directions, on 20 February 2013, of which those opposing the amendment were not aware and to which the Tribunal had regard in its determination of the matter. Strictly speaking, this is not a matter to be raised in relation to an objection to an amendment, but would be relevant to any proposed application for leave to appeal the Tribunal's decision. The complaint becomes relevant, however, because it is submitted that the matters raised in Ms Seghezzi's replying submission cannot be properly determined on the documents and should be tested in a new application brought by Ms Seghezzi under s 83 of the ST Act. This is a point of substance which requires careful consideration.
Before doing so, I should, however, comment briefly on the complaint that the owners and tenants of Lots 4, 5 and 6 were not accorded procedural fairness. This is based on the Tribunal's direction made on 13 December 2012 that, subject to further order, the matter be determined on the documents. The directions made required the respondent to file and serve a response to the application and then to give notice to all persons referred to in s 79(2) of the ST Act ('Notified Persons'), affording them an opportunity to inspect a copy of the application, all supporting documents and the respondent's response and documents relied on by the respondent. Any notified person was then provided an opportunity, on or before 13 February 2013, to file any submissions which they wished to make either supporting or opposing the application. It was further directed that the parties, and any notified person, have leave to inspect the Tribunal's file, and to file any further replying submissions on which they wished to rely, on or before 20 February 2013.
This process of allowing inspection after all opposing and supporting submissions have been made is one which has been developed by the Tribunal because of the practical difficulty in having laypersons file and serve on each other person involved in the proceedings a copy of any submission they might make. This often proves quite impracticable. The ability to inspect is designed to avoid that consequence.
As stated, Ms Seghezzi filed a replying submission on 20 February 2013. A replying submission should be confined to topics raised in the supporting or opposing submission filed on or before 13 February 2013. If not so confined, it might be appropriate to provide the notified persons or the respondent an opportunity to file further submissions or to direct that it is not appropriate to determine the matter on the documents if contentious relevant and significant disputes of fact arise from the replying submissions.
In Seghezzi No 1 at [11], the Tribunal expressly found that any disputes of fact were peripheral and did not preclude a fair determination of the matter on the documents. The topics addressed by Ms Seghezzi in her replying submission were properly confined.
It is also observed that the Tribunal understood that the parties requested the matter to be determined on the documents, as reflected at [11] of Seghezzi No 1. The recording of the directions hearing reflects that I expressed a view preferring an oral hearing. When Ms Seghezzi at a later stage made submissions in favour of the matter being determined on the documents, none of the persons present, which included the representatives for Lots 5 and 6, had anything to say, and were understood to be in agreement. Strata disputes prior to the transfer of jurisdiction from the Strata Titles Referee were always determined on the documents. Many litigants still press for disputes to be resolved in that way to minimise inconvenience to themselves. When parties do so, they suffer the loss of flexibility inherent in an oral hearing. If they have not fully presented their case in accordance with the procedures agreed or determined at the directions hearing, that may operate to their prejudice. But, if significant and relevant conflicts of fact are apparent, they should be safeguarded by the Tribunal declining to proceed on the documents. The disputes of fact were held to be peripheral and not to preclude a fair determination on the documents. I do not accept that those opposing the application were not afforded procedural fairness.
This may not matter if I am, in any event, satisfied that the opposing parties have material information which could be put before the Tribunal which might result in a different outcome if a new application has to be made relying on the Tribunal's general dispute resolution powers set out in s 83 of the ST Act, provided that the opposing parties could not reasonably have been expected to place that information before the Tribunal in the earlier proceedings. This requires examination of the grounds of objection to the application to amend.
The grounds of objection
There are four principal grounds of objection raised, but there are six supplementary grounds advanced under ground 3, and 11 supplementary grounds advanced under ground 4. Many of the submissions advancing these grounds are indirectly little more than criticisms of the decision in Seghezzi No 1 without any indication that there is other evidence available which could be provided if the applicant was required to lodge a new application.
Many of the criticisms advanced are that a particular point, case reference, or other information appears not to have been taken into account. It is not incumbent on a decision-maker to deal with every issue raised if the material issues have been addressed and the rationale of the decision-maker has been disclosed: see Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273. Under s 77(2) of the SAT Act, the reasons that the Tribunal gives for a final decision have to include the Tribunal's finding on material questions of fact, referring to the evidence or other material on which those findings are based.
On the same principles, it is not necessary to respond to each and every submission made in support of the objection. All have been considered and the reasons which follow should disclose the Tribunal's reasons on all material issues.
The objectors were not given sufficient opportunity to view and consider the applicant's replying submission
This has been addressed above. The applicant, respondent and each notified person had a right to inspect the Tribunal's file, including submissions made by any person opposing or supporting the application which were to be filed by 13 February 2013 and to file a replying submission, in relation thereto, by 20 February 2013. There was no right to file a reply to a replying submission, but procedural fairness was safeguarded by the Tribunal being able to direct that the matter not be determined on the documents if disputes of fact were raised which were relevant and significant, or if information was provided which went beyond that contemplated by a right of reply.
The Tribunal should be fully satisfied as to the reasons for the withdrawal of the opposing submission by Ms Seghezzi's tenant
The original submission by the tenant of Lot 2 dated 18 January 2013 was filed prior to 13 February 2013 and was available for inspection by any other party or notified person. That submission supported the objectors' case that there was a need for additional onsite parking. It made a brief reference to the safety and security issue insofar as it contained a statement that there is limited parking on the street and the narrowness of the road means that traffic from both directions cannot pass due to the parked cars and that this creates a dangerous situation. By letter dated 19 February 2013 attached to Ms Seghezzi's reply, the tenant withdrew support of the proposal for additional parking, as explained at [14] in Seghezzi No 1. The letter reflects that the tenant had only one motor vehicle and that parking on the property is sufficient for the tenant.
There is no suggestion in the information provided to the Tribunal that there is any dispute that the applicant's tenant had only one motor vehicle (which was parked in the car parking bay allocated to Lot 2). Further inquiry of the circumstances in which the tenant withdrew support was not likely to have any bearing on the case. Other tenants and lot owners had advanced all that there was to be said in support of the case for additional car parking bays.
The Tribunal failed to have regard to a number of considerations in relation to the safety and security issue
As explained at [13] of Seghezzi No 1, s 35(1)(b) of the ST Act provides that the strata company shall control and manage the common property for the benefit of all proprietors. A decision made to alter the common property can be justified as coming within the obligation to control and manage the common property where the alteration is necessary on the grounds of safety and security.
After discussion of the material information before it, the Tribunal acknowledged (without deciding) at [17] of Seghezzi No 1, that, while there may be circumstances which are sufficiently clear to show that if it is necessary to contain parking wholly within a strata parcel because of risk of injury to lot owners, invitees or to owners' property, it did not consider that the material provided was sufficient to support such a conclusion. In the result, however, that finding was not determinative of the application, because the Tribunal, in any event, found that on a proper characterisation of the works to be carried out, the work contemplated fell within the strata company's obligation to control and manage the common property (Seghezzi No 1 at [22] ‑ [25]). Even if the decision could have been justified on the grounds of safety and security as falling within the strata company's obligation to control and manage the common property, the decision would have to be justified under s 35(1)(b) of the ST Act as being one made for the benefit of all the proprietors. It was on that material issue that Ms Seghezzi succeeded because the Tribunal concluded that the decision was not made for the benefit of all the proprietors.
In these circumstances, I shall attempt to deal as briefly as possible with the material issues raised in the supplementary grounds under ground 3.
There is no merit in the submission that the new owner of Lot 3 has not formed a view on whether additional car parking bays are necessary. As reflected in the rationale of the original decision in relation to consideration of whether the proposal in issue was for the benefit of all the proprietors, and for the same reasons, the assessment of whether works are necessary on the grounds of safety and security is an objective one. The decision is not dependent on the subjective views of any one owner.
A number of submissions are raised in relation to car vandalism which has taken place, but the information provided was deficient for the reasons given in Seghezzi No 1. Any additional information (with one exception discussed further below) provided in the opposing submissions takes the matter no further, because it refers to incidents which occurred within the parcel (paragraphs 3(b) and 3(c)) and which have no probative value to support a reduction of safety risks because motor vehicles are parked within the parcel.
The Tribunal is criticised for the comments it made at [17] in Seghezzi No 1 that the risks inherent in the adjacent street being a busy one is not avoided by parking inside the parcel and, indeed, that the submissions refer to danger when entering or exiting from the parcel which, if anything, would occur more often if additional car parking bays were provided within the parcel. It is submitted these comments are not fully informed. But these comments were provided by the objectors, not the applicant: see the submission of Kelshore Pty Ltd and the submission from the tenant of Lot 6.
The exception referred to above is that, under ground 3(e), there is relevant new evidence provided, and that is that on 7 March 2013 (after the due date of all submissions), the tenant of Lot 6 had a motor vehicle stolen when it was parked outside the parcel. It is said that a police report is available.
This evidence is directly relevant to whether the decision in question could be justified on safety and security grounds. However, as already pointed out, the issue of whether or not the decision could be based on safety and security grounds became of no significance once the Tribunal, in any event, concluded that the decision fell within the strata company's ordinary powers to control and manage common property when regard was had to the proper characterisation of the work to be undertaken. The issue, as discussed below in relation to this incident, is whether the incident may affect any reconsideration of the safety and security finding and, in turn, impact upon the finding that the decision was not for the benefit of all the proprietors.
Citicisms of the finding that the decision was not for the benefit of all proprietors
As already noted, there are 11 supplementary grounds on which the objectors rely. Many of these criticise the basis for the Tribunal's rationale for concluding that the decision was not for the benefit of all proprietors. These are matters relevant to an appeal rather than the proposed amendment. I shall endeavour to address only those matters relevant to the consideration of the application to amend.
The rationale for the Tribunal's decision on this issue reflects that the Tribunal made its determination by balancing the convenience and increased enjoyment of the lots and common property which would come with the additional car parking bays, against the disadvantage to the applicant. The Tribunal adopted this course relying on previous decisions of the Tribunal to which it referred, namely, Banning and The Owners of 106 Terrace Road Perth ‑ Strata Plan 6289 [2006] WASAT 296 and Grant and The Owners of Rosneath Farm ‑ Strata Plan 35452 [2006] WASAT 162. On that basis, the Tribunal did not specifically refer to a decision relied on by the owners of Lots 5 and 6, namely, Fraser and The Owners of Morgan Mews, Strata Plan 453 [2011] WASAT 102 at [5], which dealt with a quite different situation and that was whether the associated noise involved in the manoeuvring of motor vehicles on a parcel constituted an undue noise in breach of Sch 2 By‑law 12(d). The case is obviously of no relevance when balancing whether or not an owner of common property should have her rights interfered with by alterations to the common property.
Reliance is placed on the benefit that ground floor units received from previous decisions, such as to carry out landscaping on what has been referred to in Seghezzi No 1 as the eastern side of the building. There is nothing to suggest that, at the time those decisions were made, as a consideration, ground floor owners should give up or accept a deterioration of other amenities. There is no suggestion that there is any evidence which might be given at a subsequent hearing to establish this situation and, in any event, if there was, that this could not have been raised in the initial submissions.
There were submissions raised about the extent of the benefit of the garden on what has been described in Seghezzi No 1 as the western side of the building. It is also complained that the objectors have not seen what the current tenant of Lot 2 or the applicant have said about this. There has been no suggestion that the tenant of Lot 2 gave information on this issue. The Tribunal relied on the information provided by the applicant as set out in [40] of Seghezzi No 1. It is true that the objectors have not seen this information, but the owner of Lot 5, Mr Freeman, raised the issue of the aesthetics and state of the garden areas to be removed in his submission. The matter was therefore properly dealt with in a reply by Ms Seghezzi. Mr Freeman provided photographs of the area, as did Ms Seghezzi, so that the description by her of the effect of the garden was not regarded as controversial. It is now submitted that the tree and high bushes proposed for removal adjacent to bedroom 2 are actually on the south corner of the building and so provide no protection from the west setting sun. That was a matter which clearly influenced the Tribunal. But, there is no new evidence which has been referred to which might go to this issue. Indeed, there are a number of plans which were put into evidence. The ground floor plan attached to the registered strata plan demonstrates that the information provided in the objection submission is not correct. The corner of the building concerned is far more accurately described as being the western corner of the building.
Finally, the last ground raised is that the safety and security benefits of bringing cars inside the complex were not factored into the decision whether the proposal was for the benefit of all the proprietors and it is said to be unclear why that is so. Ordinarily, this is not a point which requires a response because it is an issue to be considered in the context of whether or not to appeal the decision.
It was not necessary in Seghezzi No 1 to take into account safety and security benefits because the Tribunal found that that ground was not made out. The Tribunal found at [34] of Seghezzi No 1 that there was no pressing need for the additional two car parking bays but that there was an argument to be advanced in favour of the bays based on the convenience and increased enjoyment in the amenity of the lots and common property which would come with the additional bays ([38] of Seghezzi No 1). There was therefore an acceptance of the inconvenience attached to parking in the street and that was factored into the decision. However, the new evidence provided of the theft of a motor vehicle owned by the tenant of Lot 6 on 7 March 2013 while parked outside the parcel potentially affects the outcome of the safety and security issue. It may be that if there were a finding that there were sufficient safety and security concerns, this might outweigh the detriment which the occupiers of Lot 2, and indirectly the applicant, Ms Seghezzi, would suffer. The previous evidence in relation to vandalising of motor vehicles was not clear ([16] of Seghezzi No 1).
With some reluctance, having regard to the agreed manner in which the matter was conducted and the randomness of an event occurring after closing of submissions, I recognise that if the application to amend is refused, it will provide an opportunity for the matter to be recontested, with the benefit of the Tribunal's views on a range of issues. Once it is accepted that there is further evidence available which may affect the outcome and which the opposing parties cannot be criticised for not putting forward, a fair determination of the substantial merits of the dispute requires that the application to amend be refused.
Concluding comments ‑ the way forward
In the light of the findings of the Tribunal that on the material put before it the proposal to create two additional car parking bays set out in proposal 1 of the minutes of the extraordinary general meeting held on 15 May 2012 is contrary to s 35(1)(b) of the ST Act, it would be imprudent for the respondent to implement that proposal, and if it did so, Ms Seghezzi would be unlikely to have any difficulty in applying for an order restraining the respondent pending determination of a new application to be brought under s 83 of the ST Act.
The parties would do well to confer with each other to ascertain whether the more significant aspects of detriment suffered by the occupiers of Lot 2, and therefore Ms Seghezzi, can be accommodated in some way with a view to a proposal being put to the respondent which would enjoy the support of all proprietors. But, if that course, for any reason, is impractical or unacceptable to interested parties, Ms Seghezzi should commence fresh proceedings under s 83 of the ST Act as soon as possible. If she delays in doing so, that may affect her right to seek any interim restraining order. Having regard to the history of this matter, it may be prudent to ensure that the issues are properly defined and that there is then an oral hearing.
Conclusion
For the above reasons, I conclude that the application to amend at this late state of the proceedings should be refused, and it then follows, for the reasons given in Seghezzi No 1, that the application must be dismissed. An order will accordingly issue as follows.
Orders
1.The applicant's application by letter dated 24 April 2013 to amend the application to seek an order under s 83 of the Strata Titles Act 1985 (WA) that the proposal to create to additional car parking bays set out in proposal 1 of the minutes of the extraordinary general meeting held on 15 May 2012 is contrary to s 35(1)(b) of the Strata Titles Act 1985 (WA) and that the respondent is accordingly not entitled to proceed with the proposal, is refused.
2.The applicant's application under s 97(1) of the Strata Titles Act 1985 (WA) is dismissed.
I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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