SINGH and THE OWNERS OF PICCADILLY SQUARE (STRATA SCHEME 10672)
[2022] WASAT 21
•16 MARCH 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: SINGH and THE OWNERS OF PICCADILLY SQUARE (STRATA SCHEME 10672) [2022] WASAT 21
MEMBER: MS C CONLEY, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 16 MARCH 2022
FILE NO/S: CC 1118 of 2021
BETWEEN: GAJENDER PAL SINGH
Applicant
AND
THE OWNERS OF PICCADILLY SQUARE (STRATA SCHEME 10672)
Respondent
Catchwords:
Strata Titles Act 1985 - Application for enforcement of Scheme By-laws - Application to dismiss application - Application for enforcement of Scheme Bylaws dismissed
Legislation:
State Administrative Tribunal Act 2004 (WA), s 47, s 47(2), s 48, s 48(2), s 48(2)(a)
Strata Titles Act 1985 (WA) (prior to 20 May 2020), Sch 1, Sch 2
Strata Titles Act 1985 (WA), s 3, s 10, s 10(1), s 10(3), s 13(5)(c), s 13(9), s 39(a), s 39(b), s 43(1), s 43(2), s 43(3), s 45(1), s 45(2), s 47, s 47(3), s 47(4), s 47(5), s 83, s 91, s 91(1)(b), s 91(1)(c), s 119, s 119(1), s 197(1)(a)(ii), s 198, s 198(5), Sch 1, Sch 2, Sch 5
Strata Titles Amendment Act 2018 (WA)
Result:
Application allowed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr Sean McFarlane |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Bugden Allen Graham Lawyers |
Case(s) referred to in decision(s):
Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141
Andrews and The Owners of Coralie Gardens Strata Plan 44374 [2022] WASAT 2
Asterleigh Pty Ltd as Trustee for the Lahdo Family Trust and Volley Investments Pty Ltd [2021] WASAT 201
Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Kelly [2021] WASC 448
Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153
Council of Owners-Strata Plan 8969 and Cleaver-Wilkinson [2013] WASAT 196
Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165
Pitt v Baxter [2007] WASCA 104
The Owners of Rosneath Farm Survey Strata Plan 35452 and Rowell & Anor [2007] WASAT 95
Wilde and Smith [2008] WASAT 310
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant is the owner and occupier of Lot 7[1] in a strata scheme located in Aberdeen Street in Perth (Scheme).
[1] Certificate of Title in respect of Volume 1627 Folio 446 (Register Number 7/SP10672).
The respondent is the strata company for the Scheme (Strata Company).
UnitingCare West is the owner and occupier of Lots 1, 4, 5, 6 and 10 in the Scheme.
The Scheme was created upon the registration, in 1982, of Strata Plan 10672 (Strata Plan). The Scheme comprises 12 commercial lots, namely Lots 1-8, 10, 12-13 and 16.
A number of businesses operating from commercial premises in the Scheme, such as UnitingCare West, Aflame Church and Day Dawn Advocacy, provide services to vulnerable and homeless people. This has led to people seeking support services visiting the Scheme and waiting, or congregating with others, on the common property of the Scheme.
On 14 July 2021 the applicant applied to the Tribunal under s 47(3) of the Strata Titles Act 1985 (WA) (ST Act) for the enforcement of the by-laws of the Scheme (Scheme By-laws).
The respondent has applied to the Tribunal for orders under s 47(2) and s 48(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and s 198(5) of the ST Act for the dismissal of the application (dismissal application).
On 16 November 2021 the Tribunal ordered that, subject to any further order, the dismissal application was to be determined entirely on the documents.
For the purposes of determining the dismissal application, I have taken into account the following documents:
a)the applicant's application lodged on 14 July 2021 and the attachments to the application;
b)the applicant's bundle of documents filed on 19 October 2021;
c)the respondent's response to the application filed on 9 November 2021 (respondent's response);
d)the respondent's application for orders under s 47(2) and s 48(2) of the SAT Act and s 198(5) of the ST Act (respondent's application for orders to dismiss) filed on 1 December 2021; and
e)the applicant's final submissions filed on 14 December 2021.
The applicant's application
In his Statement of Issues, Facts and Contentions (SIFC), the applicant alleges that for the last few years there have been activities that affect his use and enjoyment of the common property. In particular, the applicant alleges that events have been organised on the common property disrupting his business, that services such as Street Doctors are operating from the common property and that UnitingCare West visitors block access to his property. The applicant further alleges that the Strata Company has taken no action to rectify the situation.
In the applicant's bundle of documents, the applicant provided copies of 54 breach notices issued to UnitingCare West by ESM Strata (Strata Manager) on behalf of the Council of Owners between 11 December 2019 and 19 March 2020 (Breach Notices). Details of each of the Breach Notices are summarised in Annexure 1 to these reasons.
Attached to the Breach Notices are photographs which show people on the common property of the Scheme. The photographs show:
a)people sitting or lying down on the walkways;
b)people sleeping on the walkways;
c)people standing on the walkways outside commercial premises or congregating with others on the walkways or in the carpark area;
d)bicycles standing or lying on the walkways and in the carpark area; and
e)various items of property left lying on the walkways or carpark area (for example, blankets, baggage, clothing and rubbish).
The applicant has also lodged with the Tribunal a USB stick containing video surveillance footage of the Scheme from various dates and times in 2021. That surveillance footage shows:
a)people eating, drinking and smoking whilst sitting and standing on the walkways or in the carpark area;
b)food and drink containers littering the walkways;
c)belongings such as bedding and bags left on walkways;
d)people sitting or lying on the walkways in front of doorways to commercial premises; and
e)people milling around the walkways or in the carpark area.
In a series of four photographs dated 12 June 2021, a white van is shown parked across more than one car bay. These photographs were attached to the applicant's application as an example of a service operating on the common property.
In a series of three photographs dated 3 June 2021, some kind of gazebo or tent structure has been erected across more than one car bay. These photographs were attached to the applicant's application as an example of an event being held on the common property.
The applicant also lodged a copy of an email exchange between himself and a representative of the Strata Manager on 3 June 2021 in which:
a)at 9.51 am the applicant emailed the Strata Manager to ask to see a copy of the permission given to UnitingCare West for the erection of a gazebo tent in the common area of the property that morning;
b)at 10.23 am the Strata Manager emailed the applicant to say that she had contacted UnitingCare West with the applicant's query and would get back to him with its response;
c)at 10.40 am the Strata Manager emailed the applicant to say that she was not aware of any permission being granted but she had contacted UnitingCare West to advise;
d)at 2.30 pm the Strata Manager emailed the applicant to say that she understood 'a low key and respectful reconciliation day ceremony was held out of respect to Aboriginal and First Nations People's [sic]' and that 'the area has been cleaned and no adverse reactions were noted'.
The applicant has sought the Tribunal's assistance to resolve the following issues:[2]
1)Is the Strata Company fulfilling its obligation under s 91 of the ST Act to control and manage the common property to benefit all the owners of the lots?
2)Can an owner of a lot organise events on the common property which is not registered for exclusive use?
3)Can any third party be invited to the common property to render services to a lot owner's visitors?
[2] As set out in the applicant's SIFC dated 14 July 2021.
In support of his application, the applicant has referred to s 10, s 83, s 91 and s 119 of the ST Act; by-law 1(2) of the By-laws set out in Sch 1 of the ST Act prior to 1 May 2020 (By-law 1(2)); and by-law 2 of the By-laws set out in Sch 2 of the ST Act prior to 1 May 2020 (Bylaw 2).
The applicant has sought the following orders:[3]
•Strata Company to stop visitors of other lot owners to block access to Lot 7 of SP-10672.
•Strata company to take action that visitors to UnitingCare West don't stay on prolonged period and interfere with the use and enjoyment of the common area by other lot owners.
•Strata company ensures that all the events organised by lot owners are contained in their respective lots rather than the property's common area.
•Strata company ensures that lawful use of the common property is not obstructed for the proprietor of Lot 7.
•Strata Company to immediately stop 'Street Doctors' to operate from the common area of SP-10672.
[3] As set out in the applicant's SIFC dated 14 July 2021.
Subsequently, the applicant sought to amend the orders previously sought to direct the Strata Company to:
1provide the applicant access to his lot, 24 X 7.
2stop camping and littering on common property[.]
3stop the organisation of events on common property without approval.
4stop Street Doctors operating from common property.[4]
The respondent's application to dismiss
[4] Applicant's final submissions.
In the respondent's response, the respondent contends that:
a)the applicant does not have grounds to commence the application under s 47(3) of the ST Act;
b)the applicant has failed to apply for relief under the correct sections of the ST Act; and
c)the applicant has failed to demonstrate:
i)that the Strata Company has failed to comply with its duty under s 91(1)(b) of the ST Act;
ii)the applicant has suffered any significant nuisance as a result of people entering the common property.[5]
[5] Respondent's response at paras 1-3.
The respondent has sought:
a)an order pursuant to s 47(2) of the SAT Act dismissing CC 1118 of 2021 (the Proceeding); and
b)in the alternative, an order pursuant to s 48(2)(a) of the SAT Act dismissing the Proceeding.[6]
[6] Respondent's application for orders to dismiss at para 4.
The respondent has submitted that the Proceeding is:
a)frivolous; and/or
b)vexatious; and/or
c)misconceived; and/or
d)lacking in substance; and/or
e)being used for an improper purpose; and or
f)brought for the purpose to harass or annoy, or to cause detriment.[7]
Legislative framework
[7] Respondent's application for orders to dismiss at paras 2 and 3. See also respondent's response at para 1.2.
Section 47 of the SAT Act provides:
(1)This section applies if the Tribunal believes that a proceeding
(a)is frivolous, vexatious, misconceived or lacking in substance; or
(b)is being used for an improper purpose; or
(c)is otherwise an abuse of process.
(2)If this section applies, the Tribunal may order that the proceeding be dismissed or struck out and make any appropriate orders.
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
Section 48 of the SAT Act provides:
(1)This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as
(a)failing to comply with an order or direction of the Tribunal without reasonable excuse; or
(b)failing to comply with this Act or the enabling Act; or
(c)asking for an adjournment the need for which is attributable to a failure described in paragraph (a) or (b); or
(d)attempting to deceive another party or the Tribunal; or
(e)vexatiously conducting the proceeding; or
(f)failing to attend any hearing in the proceeding.
(2)If this section applies, the Tribunal may
(a)if the party causing the disadvantage is the applicant, order that the proceeding be dismissed or struck out;
(b)if the party causing the disadvantage is not the applicant
(i)determine the proceeding in favour of the applicant and make any appropriate orders; or
(ii)order that the party causing the disadvantage be struck out of the proceeding.
(3)The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4)The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
Section 47 of the ST Act relevantly provides:
…
(3)An application may also be made to the Tribunal for enforcement of scheme by laws by -
(a)the owner of a lot in the strata titles scheme; or
(b)if the scheme is a leasehold scheme - the owner of the leasehold scheme; or
(c)a mortgagee of a lot in the strata titles scheme; or
(d)an occupier of a lot in the strata titles scheme.
(4)An application can only be made under subsection (3) on the grounds that -
(a)if a person other than the strata company is alleged to have contravened the scheme by laws - the person has been given notice under subsection (1)(a) and has contravened the notice; or
(b)the contravention has had serious adverse consequences for a person other than the person alleged to have contravened the scheme by laws; or
(c)the person has contravened the particular scheme by law on at least 3 separate occasions.
(5)The Tribunal may, if satisfied that a person has contravened the scheme by laws, by order require the person to do 1 or more of the following -
(a)pay a specified amount to the strata company by way of penalty for the contravention;
(b)take specified action within a period stated in the order to remedy the contravention or prevent further contraventions;
(c)refrain from taking specified action to prevent further contraventions[.]
Section 198 of the ST Act relevantly provides:
…
(5)In addition to the circumstances in which the State Administrative Tribunal Act 2004 section 47 applies, that section applies to a scheme dispute if the Tribunal
(a)is not satisfied that the nature of the dispute is more than trivial; or
(b)is not satisfied that the applicant has an interest in the matter that is more than trivial and warrants recourse by the applicant to the Tribunal; or
(c)is satisfied that the purpose of the application is to harass or annoy, or to cause delay or detriment, or is otherwise wrongful; or
(d)is satisfied that the nature and gravity of the dispute is such that it is reasonable to expect the parties to resolve the dispute without recourse to the Tribunal[.]
Dismissal of a proceeding by the Tribunal under s 47 of the SAT Act
Under s 47(2) of the SAT Act, the Tribunal constituted by a legally qualified member may, on the application of a party or on its own initiative, order that a proceeding be dismissed or struck out and make any appropriate orders.
However, the Tribunal cannot make an order under that subsection unless the Tribunal believes that a proceeding:
a)is frivolous, vexatious, misconceived or lacking in substance; or
b)is being used for an improper purpose; or
c)is otherwise an abuse of process.
Section 198(5) of the ST Act extends the grounds on which a scheme dispute may be dismissed under s 47 of the SAT Act and includes, inter alia, where the Tribunal is satisfied that the purpose of the application is to harass, or annoy, or to cause delay or detriment, or is otherwise wrongful.
The principles to be applied by the Tribunal in dealing with an application for dismissal of a proceeding on the basis that the application is misconceived or lacking in substance are analogous to the principles to be applied by courts to summarily dismiss a proceeding.[8] The proceeding must be so obviously untenable that it cannot possibly succeed, be manifestly groundless, or disclose a case which the court is satisfied cannot succeed.[9]
[8] Laurent and Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 (Laurent) at [21]-[23] per Deputy President Judge Pritchard.
[9] Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 at [8] per Deputy President Judge Chaney.
The term 'misconceived' means a misunderstanding of legal principle whereas the term 'lacking in substance' means an untenable proposition of law or fact.[10]
[10] Laurent at [23] per Deputy President Judge Pritchard.
The Tribunal may make findings of fact, based on whatever materials are before it, relevant to its assessment or whether the proceeding is misconceived or lacking in substance.[11]
[11] Asterleigh Pty Ltd as Trustee for the Lahdo Family Trust and Volley Investments Pty Ltd [2021] WASAT 201 at [23] per Senior Member Raymond; Wilde and Smith [2008] WASAT 310 at [5] per Senior Member Raymond.
For the purposes of the dismissal application, I make the following findings of fact:
a)the matters set out in [1]-[5] and [16] above;
b)the Breach Notices referred to in [11] above were issued to UnitingCare West; and
c)some visitors to the Scheme engage in conduct on the common property of the types depicted in the photographs and surveillance footage and referred to in [12]-[15] above.
Common property
This dispute concerns the common property of the Scheme.
The common property in a strata titles scheme is, relevantly, 'that part of the parcel of land subdivided by the strata titles scheme that does not form part of a lot in the strata titles scheme'.[12]
[12] Section 10(1), ST Act.
Common property includes, for a strata scheme, those parts of a scheme building that do not form part of a lot.[13] Conversely, if the parts of a scheme building form part of a lot, then they are not common property.
[13] Section 10(3), ST Act.
Common property is held by the owners of lots in a strata scheme as tenants in common in shares proportional to the unit entitlements of their respective lots.[14]
Rights and obligations of owners and occupiers in respect of common property
[14] Section 13(5)(c) and s 7(b), ST Act; and see also Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Kelly [2021] WASC 448 at [23] per Allanson J.
The owner or occupier of a lot is subject to the obligation in s 83 of the ST Act. They must not use, or permit the use of, the lot or common property of the strata titles scheme in a way that interferes unreasonably with the use or enjoyment of another lot or the common property by a person who is lawfully on the lot or common property.
The owner of a lot cannot separately deal with or dispose of the owner's share in the common property of the strata titles scheme.[15]
[15] Section 13(9), ST Act.
The owner of a lot cannot, by unilateral conduct, revoke an implied licence to come onto common property granted by all tenants in common.[16] This is because if the owner of a lot is able to revoke an implied licence granted by all tenants in common, then such a power would be inconsistent with the rights of use or enjoyment of the common property of those other tenants in common, and be inconsistent with the nature of a tenant in common's interest in respect of the common property.[17]
[16] Pitt v Baxter [2007] WASCA 104 (Pitt) at [22] per Wheeler JA with Buss JA and Miller AJA agreeing.
[17] Pitt at [22] per Wheeler JA with Buss JA and Miller AJA agreeing.
As a general rule, the owner of a lot cannot make exclusive use of common property in a scheme in the same way that the owner makes use of their lot. However, there are some exceptions to this rule such as where the owner has some exclusive use and enjoyment of, or special privileges over, the common property (for example, under an exclusive use by-law or a lease).
Scheme by-laws, known as exclusive use by-laws, may confer exclusive use and enjoyment of, or special privileges over, the common property in a strata titles scheme (special common property) or specified property in the strata titles scheme or on the occupiers, for the time being, of a specified lot or lots in the strata titles scheme (special lots).[18] Exclusive use by-laws can only be made, amended or repealed if the owner of each lot that is or is proposed to be a special lot has given written consent to the by-laws.[19]
[18] Section 43(1), ST Act.
[19] Section 43(5), ST Act.
If exclusive by-laws have been made, then the obligations that fall on the strata company under s 91(1)(c) of the ST Act in relation to special common property fall on the owners of the special lots, subject to the terms of those exclusive by-laws.[20]
[20] Section 43(3), ST Act.
Accordingly, to the extent that an owner or occupier of a lot takes issue with the use and enjoyment of the common property by the owner or occupier of another lot, it will be necessary to take into account the following factors:
a)the nature of the scheme (residential, commercial or mixed);
b)whether the owner or occupier using or enjoying the common property has exclusive use and enjoyment of, or special privileges over, the common property in the strata titles scheme;
b)whether the owner or occupier is, in using or permitting the use of the common property, in contravention of s 83 of the ST Act; and
c)whether the owner or occupier is in contravention of any scheme by-laws relating to the common property.
Obligations of strata company in respect of common property
A strata company has the three functions in respect of common property conferred by s 91 of the ST Act. First, a strata company is under a mandatory obligation to control and manage the common property for the benefit of all the owners of lots. Second, a strata company is under a mandatory obligation to keep in good and serviceable repair, properly maintain and, if necessary, renew and replace the common property. Third, a strata company has a discretion to improve or alter the common property.
If a strata company considers that any part of the common property is the subject of any unwarranted privileged use by any owner or occupier of a lot, then it may take action under s 91(1)(b) of the ST Act to restore the commonality of entitlement which underlies the concept of common property.[21]
[21] Rosneath at [11] and [40] per Member Carey. See also Council of Owners-Strata Plan 8969 and Cleaver-Wilkinson [2013] WASAT 196 at [12] per Senior Member Raymond.
For example, in The Owners of Rosneath Farm Survey Strata Plan 35452 and Rowell & Anor [2007] WASAT 95 (Rosneath), the respondents took up possession and resided at a house built on the common property lot in a survey-strata scheme for a period of 10 years. The proprietors of the other lots were only provided with minimal access to the house by the respondents. The Tribunal ordered that the respondents vacate and cease to use the house as their residence, remove their personal effects, chattels and fixtures and make good any damage. This was because the respondents had not demonstrated any rights to the house superior to that of the other proprietors.
Compliance with scheme by-laws
The persons to whom scheme by-laws may apply are listed in s 45(1) of the ST Act and, relevantly for present purposes, includes the strata company for the strata titles scheme and a member of that strata company.
Pursuant to s 45(2) of the ST Act, each person to whom scheme bylaws apply must comply with the by-laws as if the by-laws were a deed (signed and sealed by each person to whom they apply) containing mutual covenants to observe and perform the matters set out in the bylaws.
The owner, occupier or lessee of a lot or common property in a strata titles scheme must take all steps that are reasonable in the circumstances to ensure that every person who they permit to use or who they invite on to the lot or common property complies with bylaws that apply to the owner, occupier or lessee.[22]
[22] Section 45(4), ST Act.
A strata company is required to comply with scheme by-laws and enforce compliance with those by-laws by others to whom they apply.[23]
Application for enforcement of scheme by-laws
[23] Section 112, ST Act.
Section 47(3) of the ST Act enables an application to be made to the Tribunal for the enforcement of scheme by-laws.
Scheme by-laws
The term 'scheme by-laws', for a strata titles scheme, means:
[t]he scheme by-laws registered, or proposed to be registered, for the scheme as a scheme document[.][24]
[24] Section 3, ST Act.
On registration of a strata titles scheme, the governance by-laws set out in Sch 1 of the ST Act (Schedule 1 By-laws) and the conduct by-laws set out in Sch 2 of the ST Act (Schedule 2 By-laws) are taken to be registered for the scheme.[25] However, if other scheme by-laws are registered for the scheme, the strata company is taken to have made those by-laws and the Schedule 1 By-laws and Schedule 2 By-laws are amended or repealed accordingly.[26]
[25] Section 39(a), ST Act.
[26] Section 39(b), ST Act.
Further, clause 4 of Sch 5 of the ST Act provides for the continuation of certain by-laws of a strata company in force or made prior to 1 May 2020 as scheme by-laws.
The reference to 'scheme by-laws' in s 47 of the ST Act, is a reference to:
a)any by-laws continued as scheme by-laws under cl 4 of Sch 5 of the ST Act for a scheme;
b)any applicable by-laws in Sch 1 and Sch 2 of the ST Act for a scheme; and
c)any by-laws registered for the scheme under s 39(b) of the ST Act.
Sections of the ST Act do not fall within the definition of 'scheme bylaws' for the purposes of s 47 of the ST Act. This means that a person cannot apply under s 47 of the ST Act for the enforcement of a particular section of the ST Act.
By-law 1(2) and By-law 2
By-law 1(2) and By-law 2 apply to the Scheme since:
(a)the Scheme was registered prior to 1 May 2020;
(b)the by-laws in Sch 1 and Sch 2 of the ST Act prior to 1 May 2020 (Pre-amendment Act) were deemed to be the bylaws of the Strata Company pursuant to s 42(3) of the Pre-amendment Act; and
(c)when the Strata Titles Amendment Act 2018 (WA) came into operation, By-law 1(2) and By-law 2 were continued in force by the operation of cl 4 of Sch 5 of the ST Act as scheme bylaws.[27]
[27] See, for example, Andrews and The Owners of Coralie Gardens Strata Plan 44374 [2022] WASAT 2 at [19] and [20] per Member McGivern.
By-law 1(2) relevantly provides:
A proprietor, occupier or other resident of a lot shall -
(a)use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment of the common property by other proprietors, occupiers or residents, or of their visitors; and
(b)not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to an occupier of another lot (whether a proprietor or not) or the family of such an occupier; and
(c)take all reasonable steps to ensure that his visitors do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor, occupier or other resident of another lot or of any person lawfully using common property.[28]
[28] See also By-law 2(a), 2(b) and 2(c) in Sch 2 of the ST Act (from 1 May 2020).
By-law 2 provides that:
A proprietor, occupier or other resident of a lot shall not obstruct lawful use of common property by any person.[29]
[29] See also By-law 2(d) in Sch 2 of the ST Act (from 1 May 2020).
The proper approach to construing by-laws was set out in Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153 as follows:
…
75The ordinary principles of contractual construction should guide the construction of the By-Laws. They are that the rights and liabilities of parties under a term of a contract are determined objectively, by reference to the contract's text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose. However, in the case of the By-Laws, those principles are subject to four qualifications.
76First, to the extent that their terms permit, the By-Laws should be construed so that they are not inconsistent with the ST Act (bearing in mind that a strata company has no power to make a by-law which is inconsistent with the ST Act).
77Secondly, in interpreting a term of a contract which is ambiguous, it is possible in some circumstances to refer to objective extrinsic material to ascertain the meaning of the term. However, in the context of the By-Laws, caution should be exercised in going beyond the language of the By-Laws and their statutory context to ascertain their meaning, and a tight rein should be kept on having recourse to surrounding circumstances[.]
78Thirdly, the statutory context of the by-laws of a strata company should be taken into account by the Court in construing the ByLaws. That statutory context includes the fact that the function of the By Laws is to regulate the rights and liabilities of the Respondent, the proprietors of the lots in the Complex and certain other parties with rights or interests in the lots and the common property in the Complex.
79Fourthly, in ascertaining the meaning of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood its terms to mean. That will involve a consideration of the language used, the circumstances addressed by the contract, and the commercial purpose or objects to be secured by the contract. Unless a contrary intention is indicated, the court will approach the task on the assumption that the parties intended to produce a commercial result, so that the contract should be construed so as to avoid it making commercial nonsense or working a commercial inconvenience. However, in the case of the By Laws, there is no basis for saying that they should be interpreted as a business document, with the intention that they be given business efficacy. That does not mean that the By-Laws may not have a commercial purpose, and be interpreted accordingly, but due regard must be paid to the statutory context in so doing[.]
With the above principles in mind, there are a number of points to make about By-law 1(2) and By-law 2.
The first point is that the rights and liabilities set out in Bylaw 1(2) and By-law 2 are cast upon the proprietor, occupier or other resident of a lot and not the strata company for the scheme.
The second point is that there are two prohibitions imposed by Bylaw 1(2) and By-law 2. The prohibition in paragraph (b) of By-law 1(2) prohibits a proprietor, occupier or other resident of a lot from using the lot, or permitting it to be used, in such manner or for such purpose as causes a nuisance to an occupier of another lot (whether an owner or not) or the family of such an occupier. This prohibition is confined to the lot rather than the common property. The prohibition in By-law 2 prohibits a proprietor, occupier or other resident of a lot from obstructing the lawful use of common property by any person.
The third point is that there are two restrictions imposed by Bylaw 1(2). The restriction in paragraph (a) is that a proprietor, occupier or other resident cannot unreasonably interfere with the use and enjoyment of the common property by other proprietors, occupiers or other residents, or their visitors. The restriction in paragraph (c) requires a proprietor, occupier or other resident to take all reasonable steps to ensure that their visitors do not behave in a manner likely to interfere with the peaceful enjoyment of a proprietor, occupier or other resident of another lot or of any person lawfully using common property.
Standing to apply under s 47(3) of the ST Act
The persons who may make application to the Tribunal for the enforcement of scheme by-laws under s 47(3) of the ST Act are set out in that subsection and, relevantly for present purposes, includes the owner of a lot in the strata titles scheme.[30]
Grounds for making an application under s 47 of the ST Act
[30] The term 'owner of a lot' is defined in s 3 of the ST Act.
There are only three grounds upon which an application for the enforcement of scheme by-laws may be made by the owner of a lot in the strata titles scheme.[31] The grounds are cast in the alternative.
[31] Section 47(4), ST Act.
The first ground is where a person (other than the strata company) has been given notice by the strata company under s 47(1)(a) of the ST Act (Notice) and the person has contravened the notice.
For the purposes of s 47 of the ST Act, the Notice must specify the following: the particular scheme by-law alleged to have been contravened; the particular facts relied on as evidence of the contravention; and the action that must be taken or refrained from being taken in order to avoid committing a continuing or further contravention of the particular scheme by-law.[32]
[32] Section 47(2), ST Act.
The second ground is where the contravention has had serious consequences for a person other than the person alleged to have contravened the scheme by-laws.
The third ground is where the person has contravened the particular scheme by-law on at least three separate occasions.
Persons against whom application for enforcement of the scheme by-laws should be made
It is clear that an application to the Tribunal for enforcement of the scheme by-laws under s 47(3) of the ST Act is to be made against the person whom it is alleged is in contravention of the scheme by-laws.
This is because the orders which the Tribunal may make under s 47(5) of the ST Act, upon being satisfied that a person has contravened the scheme by-laws, are solely directed towards the person in contravention of the scheme by-laws.
Should the application for enforcement of the Scheme By-laws be dismissed?
Although the applicant has standing, as an owner of a lot in the Scheme, to make an application under s 47(3) of the ST Act, I believe that the Proceeding is misconceived or lacking in substance. This is for the reasons which follow.
First, it is apparent from the documents that the applicant has filed in support of his application that the applicant is seeking the enforcement of s 10, s 83, s 91 and s 119 of the ST Act and By-law 1(2) and Bylaw 2.
However, as I have explained above at [54]-[58], sections of the ST Act are not scheme by-laws and, therefore, the Tribunal cannot make orders under s 47 of the ST Act for their enforcement. Accordingly, s 47 of the ST Act cannot be used by the applicant to enforce s 10, s 83, s 91 or s 119 of the ST Act.
Second, the applicant is seeking orders under s 47(5) of the ST Act against the Strata Company for the enforcement of By-law 1(2) and Bylaw 2.
However, the Tribunal cannot make orders under s 47(5) of the ST Act against the Strata Company for the enforcement of By-law 1(2) and Bylaw 2. As I have explained above at [73]-[74], the Tribunal is only able to make orders against the person whom the Tribunal is satisfied has contravened the scheme by-laws. There is no evidence, or indeed any allegation, that the Strata Company has contravened By-law 1(2) or By-law 2. Rather, it is alleged that the Scheme By-laws have been contravened by another person, namely UnitingCare West, as is evident from the Breach Notices.
Further, as I have explained above at [64], the obligation imposed by By-law 1(2) and By-law 2 applies only to proprietors, occupiers or other residents of a lot in a strata scheme and is not, therefore, an obligation that can be contravened by a strata company.
Accordingly, s 47 of the ST Act cannot be used by the applicant to seek orders against the Strata Company for the enforcement of By-law 1(2) and By-law 2 when the Strata Company is not, and cannot be, in contravention of those By-laws.
Given my conclusions above at [75]-[81], it is not necessary for me to consider whether there is evidence to establish any of the alternate grounds on which an application for enforcement of scheme by-laws may be made as set out in s 47(4) of the ST Act.
Further, given my conclusions above at [75]-[81], I find that the Proceeding is so obviously untenable that it cannot possibly succeed, and the Proceeding should be dismissed on the basis that it is misconceived or lacking in substance pursuant to s 47(2) of the SAT Act.
In its dismissal application, the respondent foreshadowed that if the applicant was unsuccessful, then the respondent would be making an application for costs against the applicant.
I have made orders which will enable the respondent to apply for costs, for each party to make submissions in respect of costs and for costs to be determined on the papers.
Orders
The Tribunal orders:
1.The respondent's application to dismiss the proceeding is allowed.
2.Pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA), the proceeding is dismissed as it is misconceived or lacking in substance.
3.The respondent has liberty to apply within 21 days from the date of this order to file with the Tribunal and give to the applicant an application for costs, including written submissions, copies of case authorities and any supporting documentation.
4.If the respondent elects to make an application for his costs, the applicant has 21 days from the date of the application for costs to file with the Tribunal, and give to the respondent, written submissions and any supporting documentation in reply.
5.Subject to any further order of the Tribunal, an application for costs will be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C Conley, MEMBER
17 MARCH 2022
ANNEXURE 1
| No. | Breach Notice Number | Dated of Breach Notice | Date of photographic evidence | Alleged breaches |
| 1 | 3 | 11 December 2019 | 10 December 2019 | By-law 2(a) |
| 2 | 5 | 13 December 2019 | 12 December 2019 | Section 2(b) of Schedule 1 |
| 3 | 6 | 17 December 2019 | Undated on 13 December 2019 (particulars of breach provided) | By-law 2(a) and 2(d) |
| 4 | 7 | 17 December 2019 | 14-16 December 2019 | By-law 2(a) |
| 5 | 7 | 18 December 2019 | 17 December 2019 | By-law 2(a), 2(c) and 2(d) |
| 6 | 9 | 19 December 2019 | 17 December 2019 | By-law 2(a) and 2(c) |
| 7 | 10 | 20 December 2019 | 19 December 2019 | By-law 2(a) and 2(c) |
| 8 | 11 | 2 January 2020 | 19 December 2019 | By-law 2(a) and 2(c) |
| 9 | 12 | 2 January 2020 | 21 December 2019 | By-law 2(a) and 2(c) |
| 10 | 13 | 2 January 2020 | 22 December 2019 | By-law 2(a) and 2(c) |
| 11 | 14 | 2 January 2020 | 23 December 2019 | By-law 2(a) and 2(c) |
| 12 | 15 | 2 January 2020 | 24 December 2019 | By-law 2(a) and 2(c) |
| 13 | 16 | 2 January 2020 | 25 December 2019 | By-law 2(a) and 2(c) |
| 14 | 17 | 2 January 2020 | 26 December 2019 | By-law 2(a) and 2(c) |
| 15 | 18 | 2 January 2020 | 27 December 2019 | By-law 2(a) and 2(c) |
| 16 | 19 | 2 January 2020 | 28 December 2019 | By-law 2(a) and 2(c) |
| 17 | 20 | 2 January 2020 | 29 December 2019 | By-law 2(a) and 2(c) |
| 18 | 21 | 2 January 2020 | 30 December 2019 | By-law 2(a) and 2(c) |
| 19 | 22 | 2 January 2020 | 31 December 2019 | By-law 2(a) and 2(c) |
| 20 | 23 | 3 January 2020 | 1 January 2020 | By-law 2(a) and 2(c) |
| 21 | 24 | 8 January 2020 | 2 January 2020 | By-law 2(a) and 2(c) |
| 22 | 25 | 8 January 2020 | 3 January 2020 | By-law 2(a) and 2(c) |
| 23 | 26 | 8 January 2020 | 4 January 2020 | By-law 2(a) and 2(c) |
| 24 | 27 | 8 January 2020 | 5 January 2020 | By-law 2(a) and 2(c) Schedule 1 and By-law 2 Schedule 2 |
| 25 | 28 | 8 January 2020 | 6 January 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 26 | 29 | 8 January 2020 | 7 January 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 27 | 30 | 14 January 2020 | 8 January 2020 | By-law 2(a) and 2(c)Schedule 1 |
| 28 | 31 | 14 January 2020 | 9 January 2020 | By-law 2(a) and 2(c)Schedule 1 |
| 29 | 32 | 14 January 2020 | 10 January 2020 | By-law 2(a) and 2(c)Schedule 1 |
| 30 | 33 | 14 January 2020 | 11 January 2020 | By-law 2(a) and 2(c)Schedule 1 |
| 31 | 34 | 14 January 2020 | 12 January 2020 | By-law 2(a) and 2(c)Schedule 1 |
| 32 | 35 | 14 January 2020 | 13 January 2020 | By-law 2(a) and 2(c)Schedule 1 |
| 33 | 36 | 17 January 2020 | 14 January 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 34 | 37 | 17 January 2020 | 15 January 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 35 | 38 | 17 January 2020 | 16 January 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 36 | 39 | 30 January 2020 | 17 January 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 37 | 40 | 30 January 2020 | 18 January 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 38 | 41 | 30 January 2020 | 19 January 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 39 | 42 | 30 January 2020 | 20 January 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 40 | 43 | 30 January 2020 | 21 January 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 41 | 52 | 13 February 2020 | 30 January 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 42 | 53 | 13 February 2020 | 31 January 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 43 | 57 | 13 February 2020 | 4 February 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 44 | 58 | 13 February 2020 | 5 February 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 45 | 59 | 13 February 2020 | 6 February 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 46 | 60 | 14 February 2020 | 7 February 2020 | By-law 2(a) and 2(c)Schedule 1 |
| 47 | 83 | 19 March 2020 | 3 March 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 48 | 84 | 19 March 2020 | 4 March 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 49 | 85 | 19 March 2020 | 5 March 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 50 | 86 | 19 March 2020 | 6 March 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 51 | 87 | 19 March 2020 | 7 March 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 52 | 88 | 19 March 2020 | 8 March 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 53 | 89 | 19 March 2020 | 9 March 2020 | By-law 2(a) and 2(c) Schedule 1 |
| 54 | 90 | 19 March 2020 | 10 March 2020 | By-law 2(a) and 2(c) Schedule 1 |
0
7
4