JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: SINGH and UNITINGCARE WEST [2022] WASAT 18
MEMBER: MS C CONLEY, MEMBER
HEARD: 27 OCTOBER 2021
DELIVERED : 8 MARCH 2022
FILE NO/S: CC 1120 of 2021
BETWEEN: GAJENDER PAL SINGH
Applicant
AND
UNITINGCARE WEST
First Respondent
THE OWNERS OF PICCADILLY SQUARE (STRATA SCHEME 10672)
Second Respondent
Catchwords:
Strata titles - Common property - Resolution for installation of three bike rails and bollard on common property - Whether installation of bike rails and bollard falls within duties of strata company under s 91 of Strata Titles Act 1985 (WA) - Whether resolution invalid due to inconsistency with s 119 of Strata Titles Act 1985 (WA) or Perth Parking Management Act 1999 (WA)
Legislation:
Perth Parking Management Act 1999 (WA), s 4, s 6, s 7, s 8(1), s 9, s 9(1), s 10, s 15(1), s 15(3)
Perth Parking Management Regulations 1999 (WA) reg 4, reg 6, Sch 1
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 47(1)
Strata Titles (General) Regulations 2019 (WA), reg 80, reg 80(1), reg 81
Strata Titles Act 1985 (WA) (Prior to 1 May 2020), s 32(3)(d), s 42(8), Sch 1, Sch 2
Strata Titles Act 1985 (WA), s 3, s 7(b), s 10(1), s 10(2), s 10(3), s 13(5)(c), s 14(5)(d), s 14(6), s 14(8), s 47(3), s 91, s 91(1), s 91(1)(b), s 91(2), s 92(1), s 92(3), s 92(4), s 93, s 93(3), s 102, s 102(5), s 102(5)(b), s 102(8), s 116, s 116(1)(i), s 117, s 117(1)(b), s 117(2), s 119, s 119(1), s 119(2), s 119(3), s 119(3)(a), s 120, s 120(2)(b), s 122(1), s 123(7), s 129, s 129(1), s 129(2), s 129(3), s 130(1), s 130(5), s 133, s 135(1), s 197, s 198(5), Sch 1, Sch 2A, cl 53C(2)(b), Sch 5, cl 2(1)(b), cl 4
Strata Titles Amendment Act 2018 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| First Respondent | : | MA Atkinson |
| Second Respondent | : | In Person |
Solicitors:
| Applicant | : | N/A |
| First Respondent | : | Atkinson Legal |
| Second 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
Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Kelly [2021] WASC 448
Laffin and Renouf [2016] WASAT 48
Rucci & Anor v The Owners of 95 Manudrah Terrace, Mandurah - Strata Plan 20610 [2002] WADC 33
Seghezzi and The Owners of 9 The Avenue Crawley Strata Plan 27842 [2013] WASAT 53
Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282
The Owners of Metro Inn Apartments Strata Plan 11800 v Transmetro Corporation Ltd [2001] WASCA 135
The Owners of Rosneath Farm Survey Strata Plan 35452 and Rowell & Anor [2007] WASAT 95
Velovski and The Owners of Hector Gardens - Strata Plan 6448 [2004] WASTR 12
Zaffino and The Owners of 20 Kings Park Road West Perth Strata…
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- AGLC
- SINGH and UNITINGCARE WEST [2022] WASAT 18
- Case
- [2022] WASAT 18
- Decision Date
CaseChat Overview and Summary
The court examined the provisions of the ST Act, particularly section 135(1) and section 91, to determine the Strata Company's ability to delegate its functions. The court found that the Strata Company had the power to enter into a management agreement and employ an agent, as evidenced by the decision in The Owners of Metro Inn Apartments Strata Plan 11800 v Transmetro Corporation Ltd. The court also considered the objective of a strata company in performing its functions, as outlined in section 119(1) of the ST Act. This objective requires that the strata company's actions not be unfairly prejudicial, discriminatory, oppressive, or unreasonable. The court found that it was within the Strata Company's authority to agree to the works being carried out by the first respondent, provided that the first respondent bore the cost of the works.
In conclusion, the court found in favour of UnitingCare West and ruled that the Strata Company had the power to authorise the first respondent to purchase and install the Bike Rails and Bollard as their agent. The court further found that the Strata Company's decision aligned with the objectives and requirements set forth in the ST Act. Therefore, the Strata Company's resolution to have the works carried out by the first respondent, at their own expense, was lawful and valid.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In The Owners of Metro Inn Apartments Strata Plan 11800 v Transmetro Corporation Ltd [2000] WASC 293, the Supreme Court held that a Strata Company had the power to enter into a management agreement for the employment of an agent in connection with the control and management of the common property and the exercise and performance of the powers and duties of the Strata Company.[88] Although s 32(3)(d) of the ST Act as it existed prior to 1 May 2020 has not been replicated in the ST Act as it currently stands, s 14(5)(d) and by-law 8(2)(b), Sch 1, ST Act provide sufficient authority for the employment of agents.[88] At [46], [49] and [57] per Owen J. This decision was upheld on appeal in The Owners of Metro Inn Apartments Strata Plan 11800 v Transmetro Corporation Ltd [2001] WASC 135. I find that the Strata Company had the power to authorise the first respondent, as agent for the Strata Company, to purchase and install the Bike Rails and Bollard. This is because Resolution 9 is in effect a direction given by ordinary resolution, as permitted by s 135(1) of the ST Act, that the functions of the Strata Company under s 91 of the ST Act in respect of the Bike Rails and Bollard are to be performed by the first respondent rather than the Council. Further, there is nothing in the ST Act to preclude the employment of an agent to perform the functions of the Strata Company under s 91 of the ST Act. There are a number of circumstances in which a strata company may agree to works being undertaken on the common property at no cost to them. For example:a)the strata company might have received a grant for the works to be undertaken and the grant completely covers the cost of the works;b)the owner of a lot may have offered to undertake the works, as agent for the strata company, at no cost; andc)the owner of a lot may have offered to pay for the works to be undertaken by the strata company. There is nothing in the ST Act or the ST Regulations which would preclude a strata company from agreeing to carry out works under s 91 of the ST Act where no costs are incurred by the strata company. Accordingly, I find that it was open to the Strata Company to agree to the works being carried out by the first respondent, as the agent of the Strata Company, on condition that the first respondent bear the cost of the works. Section 119(1) of the ST Act sets out the objective of a strata company in performing its functions. The subsection essentially operates as a command to a strata company that, in the performance of its functions, the strata company must implement processes and achieve outcomes that are not, having regard to the use and enjoyment of lots and common property in the strata titles scheme:a)unfairly prejudicial to or discriminatory against a person; orb)oppressive or unreasonable. Section 119(2) of the ST Act sets out three things that the strata company must do in achieving the objective set out in subsection (1). First, the strata company must take into account any failure of a person to act consistently with the ST Act or the scheme by-laws. Second, the strata company must consider the merits of any proposal put to it and the options that are reasonably available in any particular circumstances. Third, the strata company must be aware that a resolution or other conduct may be overturned for failure to meet that objective despite the fact that it reflects the will of the majority of members of the strata company as expressed through the exercise of their voting powers. Further, the fact that a person has chosen to become the owner of a lot does not prevent the person challenging the performance of a function for failure to meet that objective.