SNOWBALL and THE OWNERS OF WESTWARD HO - STRATA PLAN 645
[2006] WASAT 242
•22 AUGUST 2006
SNOWBALL and THE OWNERS OF WESTWARD HO - STRATA PLAN 645 [2006] WASAT 242
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 242 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:449/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS J HAWKINS (MEMBER) | 22/08/06 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BETTY EDITH SNOWBALL THE OWNERS OF WESTWARD HO - STRATA PLAN 645 |
Catchwords: | Unreasonable refusal by strata company Proposal to repaint carport roofs |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 11(1), s 79(2), s 85 Strata Titles Act 1966 (WA) Strata Titles Act 1985(WA), s 35(1), s 85, s 127(1) |
Case References: | Nil Nil |
Orders | That the application be dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : SNOWBALL and THE OWNERS OF WESTWARD HO - STRATA PLAN 645 [2006] WASAT 242 MEMBER : MS J HAWKINS (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 22 AUGUST 2006 FILE NO/S : CC 449 of 2006 BETWEEN : BETTY EDITH SNOWBALL
- Applicant
AND
THE OWNERS OF WESTWARD HO - STRATA PLAN 645
Respondent
Catchwords:
Unreasonable refusal by strata company - Proposal to repaint carport roofs
Legislation:
State Administrative Tribunal Act 2004 (WA), s 11(1), s 79(2), s 85
Strata Titles Act 1966 (WA)
Strata Titles Act 1985(WA), s 35(1), s 85, s 127(1)
(Page 2)
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):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of the Tribunal's decision
1 The applicant seeks an order under s 85 of the Strata Titles Act 1985(WA). The applicant claims that the strata company has unreasonably refused consent to have the carport roofs for Units 1 10 painted a darker colour. The applicant is the owner of Lot 15 of strata plan 645. The issue concerning the reroofing of the carport roofs for Units 1 – 10 and the possible repainting of those roofs has been the subject of discussion at numerous meetings of the strata company, at which the applicant was present. This included a meeting on 9 September 2004, at which the applicant was present and it was unanimously agreed that the roofs for Units 1 – 10 not be painted a darker colour. In the circumstances, the Tribunal is not satisfied that the strata company has unreasonably refused consent to a proposal by the applicant to paint the roofs of the units a darker colour.
The plan
2 Strata plan 645 (plan) was registered on 10 March 1971 pursuant to the Strata Titles Act 1966 (WA) (1966 Act). The 1966 Act was repealed by the Strata Titles Act 1985 (WA) (ST Act), which continues to be the relevant Act.
Parcel
3 The strata complex referred to as the Owners of Strata Plan 645 in the Town of Cottesloe comprises 21 lots. The complex is situated at 34 36 Marine Parade, Cottesloe. Each lot has one unit entitlement. The lots also share common property.
Application
4 The application seeks the following order under s 85 of the ST Act:
"That the 'Surf mist' colorbond roof that has been applied to the carport roof for Units 1 – 10, at 34 – 36 Marine Parade Cottesloe, as part of the recent works project, be painted a darker colour".
5 The application is in respect to the common property. This application concerns whether or not the consent of the strata company has been unreasonably withheld with respect to the applicant's proposal.
(Page 4)
History of application
6 The application was lodged with the State Administrative Tribunal (Tribunal) on 28 March 2006. A directions hearing was held on 13 April 2006 before Senior Member Raymond.
7 It was ordered that on or before 11 May 2006, the respondent was to give a copy of the order, the application and supporting documents to persons referred to in s 79(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On 3 May 2006, the Tribunal received a letter from Chambers Franklin Strata Management dated 2 May 2006, providing a copy of the strata roll and declaring that on 2 May 2006, a copy of the order dated 13 April 2006, the application and supporting documents were served by registered mail to the persons referred to in s 79(2) of the ST Act. It is also noted that a copy of the strata roll and the relevant declaration as per order 4 of the orders made 13 April 2006 has been provided by the respondent.
8 It was thereafter ordered that on or before 18 May 2006, the respondent and any persons to whom the notice of the application was given under s 79(2) of the ST Act could file with the Tribunal any response they wished to make.
9 Submissions have now been received from Shirley L Moir, the owner of Lot 18, TB Ardagh, the owner of Lots 8 and 10, ME Forrester, the owner of Lot 2, Ronald Duff, a coowner of Lot 16, PG Calalesina, the owner of Lot 7, Pat Barren-Hay, the owner of Lot 12, RW Freedman, the owner of Lot 4, Mr Hackett, the owner of Lot 5, Ian Hills and Sarah Hills, the owners of Lot 9, and Milva Guriano, the owner of Lot 3.
10 A further order was made by Senior Member Raymond on 27 June 2006 that the application be determined on the papers. The President of SAT nominated me, pursuant to s 11(1) of the SAT Act to constitute the Tribunal to determine the application.
Relevant legislation
11 The provisions of the ST Act of relevance to the application are the following:
• Section 35(1):
"A strata company shall
- (a) enforce the bylaws;
(b) control and manage the common property for the benefit of all the proprietors;
(c) 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;"
- • Section 85:
"Where, pursuant to an application by a proprietor for an order under this section, the State Administrative Tribunal considers that the strata company for the scheme to which the application relates has unreasonably refused to consent to a proposal by that proprietor
- (a) to effect alterations to the common property; or
(b) to have carried out repairs to any damage to the common property or any other property of the strata company,
it may make an order that the strata company consent to the proposal."
12 The applicant has annexed grounds for the application and documents upon which she relies. The application seeks orders that the "surf mist" colorbond roof that has been applied to the carport roof for Units 1 – 10 at 34 36 Marine Parade, Cottesloe be painted a darker colour. The application annexes grounds which, in summary, state as follows:
(Page 6)
- "(a) that works on the carport roof were commenced using a highly reflective colorbond material 'surf mist' without sufficient consultation of the strata company members;
(b) that the Council of Owners who selected and approved the 'surf mist' colorbond for the carport roof and the whole roof were owners of the top floor units whose intention it was to ensure that their units not be hot;
(c) that once the re-roofing had been halted and a proper selection process had been brought about, a colour change to one with a lower 'light reflective value' (Dulux starter sheet), the majority of owners lost the will to correct the error and change the carport roof already in place;
(d) at subsequent meetings to decide the merits of painting over the 'surf mist' colorbond surface was a preferable and cost-effective alternative to replacing the colorbond material;
(e) the action committee representative failed to inspect longstanding examples given by 'Abode Absolute Roof and Wall Painting' of works successfully carried out using mineral-based paints over colorbond;
(f) the influential members have unreasonably emphasised the factor of warranties on workmanship and materials above the basis amenity and comfort of presently residing members."
13 The application annexes numerous documents including a chronological statement of events, various letters and minutes of meetings of the strata company held in respect to this issue. A summary of those documents is set out as follows:
(a) Minutes of the Annual General Meeting (AGM) of the owners of strata plan 645 held on 20 August 2003 – under the heading of "roofing", there was a note that it was resolved that the painting colour selection would be carried out closer to the time when the roof was to be replaced and all owners to be asked to participate with an on site painting schedule to agree to the roof colour.
(Page 7)
- (b) Minutes of the Extraordinary General Meeting (EGM) of strata plan 645 held on 9 October 2003 – under the item "roof colour", it was noted that the Council of Owners were to meet after the meeting to discuss roof colour.
(c) In the chronological statement of events, the applicant stated that the carport roof was replaced some time between 9 October and 13 November.
(d) A letter was then written by the applicant to the strata manager on 20 November 2003. In that letter, the applicant protested that the Council of Owners were not given authority to choose the colour for the roofing and raised concerns in respect to glare from the carport roofs.
(e) Subsequently, by letter dated 8 December 2003, the strata manager appears to have written to the lot owners to attend a final meeting to decide on roof colour. That letter stated that the Council of Owners, in conjunction with a number of owners, approve of an offwhite roof - the same colour as the newly installed carport roofing. It states "the off-white colour has been contentious as being too bright to some owners … and needs to be reviewed before a final decision is made". It gave notice of a meeting that was to take place on 22 December 2003.
(f) No notes of the meeting held on 22 December 2003 have been provided. However, in a letter to the strata manager from Maureen Maisey dated 22 December 2003, Ms Maisey noted that, at the meeting held on 22 December 2003, of the 15 lot owners who attended, only 4 lot owners disagreed with the use of an off-white colour for the roof. It also stated that the issue concerning the glare of the new carport roofs was raised and that some lot owners were considering legal action. Consequently, Ms Maisey asked the strata manager to advise on the legality of the majority decision.
(g) There is then a letter from the strata manager to the applicant dated 23 December 2003. It appears to be a pro forma letter presumably written to all lot owners. It stated that 11 of the 15 lot owners were in favour of an
- off-white colour as the primary colour for the roof. The letter points out that the main reason for opposition to an off-white colour was reflectivity and the effect on resale value. The letter acknowledged the important viewpoint of the minority and asked that the lot owners choose between off-white and grey, by ballot. A ballot was then attached to the letter for return by the lot owners.
- (h) The application also attaches a letter dated 11 January 2004 from Denyse Rodriguez, being the owner of Lot 11. The letter advises that legal action would be taken unless the off-white carport roofs were replaced with a less reflective colour, such as grey.
(i) It appears then that legal advice was obtained by the strata manager from Healy Pynt Solicitors (Healy Pynt), which was dated 14 January 2004. A useful summary of the events leading up to that point is set out in that correspondence and points out that the minutes of the April 2003 EGM noted that resolutions were passed to approve modernisation of the property. Healy Pynt formed the view that the strata company was thereby authorised as a result of the meeting in April 2003, to undertake the building renovations the subject of this application. Healy Pynt raised the question of whether at the August 2003 AGM the Council of Owners was given authority to choose the colour of the roof without reference back to the owners. The letter points out that this issue was not discussed at the October 2003 EGM and gave advice that they did not consider that the Council of Owners was restricted in its choice of roof colour but given the ongoing dispute, recommended that, unless there was unanimous agreement to a second colour arising from the circular letter from the strata manager, then a further EGM be called to determine the roof colour.
(j) It appears that a further EGM was held on 16 February 2004. All 21 lot owners were represented. By majority, it was resolved that:
" … the action of the Council of Owners in proceeding with the reroofing of the carports in
- the strata plan (as part of the building renovation improvements project authorised by the EGM held on 7 April 2003 and affirmed by the AGM on 20 August 2003) using an offwhite 'surf mist' colorbond 'ultra' roofing material be ratified and confirmed with the colour of the carport roof to be reviewed, such as repaint or renew, after 30 days of the main roof being established."
- Further, by unanimous resolution no 2, it was resolved:
"that the Council of Owners be authorised and directed to proceed with the carrying out of the reroofing of the eastern block and western block of the strata plan (as part of the building renovation improvements project authorised by the EGM held on 7 April 2003 and affirmed by the AGM on 20 August 2003) using a 'wind spray' colorbond 'ultra' roofing material."
So it appeared, following a meeting dated 16 February 2004, that the colour of the carport roofs was to be reviewed in respect to either repainting or renewing 30 days after the main roof was established. As noted above, the colour of the main roof was to be "wind spray", a different colour to that of the carport roofs, and that a final decision concerning the repainting or renewing of the carport roofs which had been clad with colorbond ultra "surf mist" be reviewed 30 days after the main roof had been completed.
- (k) The review, therefore, took place on 3 August 2004 and an AGM was held on that date. One of the items on the agenda was "to review the carport roof colour". It was resolved that a subcommittee determine what course of action be taken to agree or disagree to the ultimatum by Unit 11 to repaint the carport roofs or face legal action. The meeting also resolved to hold an EGM on 9 September 2004 to discuss the decision.
(l) An EGM was held on 9 September 2004. Under the heading "special business" it was noted that the purpose of the meeting was to, amongst other things, discuss any
- findings of the appointed subcommittee. It is useful to set out the comments made by Ian Hills, who spoke on behalf of the subcommittee, as follows:
"• talked to Bluescope Steel; a contact in New South Wales said it was possible to paint the roof but owing to the sea-side location was not recommended.
• talked to Bluescope Steel in WA (Scott Nicholson) saying that it could be painted by cleaning, roughing up and painting, however the warranty would be made void as the galvanising would be compromised.
Ian Hills spoke to several painters:
• Abode (Unit 11 proposal) who would give a five year warranty to the painted carport finish as opposed to the colorbond 25 year warranty.
• Absolute Painters preferred an acrylic resin base, however, would be inefficient applied on a new surface. The alternative was a mineral-based product made by a local industrial chemist.
• Steve Cochrane – a third generation painter – said it could be done but he did not recommend it be done and no warranty would be offered owing to the seaside locality.
• Eric Woodward would use a two-pack acrylic sealer with no warranty and expects fading and chalking.
It was noted the painting commentary was varied and reserved.
- Ian Hills investigated glare, reflectivity:
• two types of glare;
• specular glare, which is a reflective glare regardless of colour and will produce the same amount of glare;
- • radiant/diffuse glare.
- Subcommittee recommendations:
• Strata law was followed and adhered to by majority of owners. A cooling period was entered into. The dispute arising is a common law issue, not strata.
• The strata company was reserved about making any changes.
• The costs of any change should be borne by those in the minority wanting change.
• The recommendation is that any change to the carport roofing be made using an ultrabond colorbond product of a grey colour, which has a 25% warranty – but not to repaint, as all evidence points to a future maintenance problem with repainting over a relatively new surface."
- The notes then go on to indicate that the meeting unanimously resolved that the strata company not paint the carport roof based on the recommendations of the subcommittee's findings. The applicant was present at that meeting and obviously agreed with the other lot owners who participated in the vote not to paint the carport roofs.
A further resolution was put to replace the Westward/front (carport roof) with an ultra type colorbond material rather than a repaint in the same material/colour as the main roof. The minutes indicate that the motion was defeated on a show of hands, but on the proviso by the dissenting voters that a separate outcome be achieved to allow the minority group an opportunity to participate further in a negotiated outcome. A further notice on motion was put and unanimously carried to forego further agenda items to be put to the meeting and appoint Cyril Geach, as its nominated representative on behalf of the strata company, to negotiate a satisfactory outcome of cost sharing with the minority group to replace the front carport roof with
- similar material and colour to the main roof and report the outcome to all owners for ratification by majority strata owners.
- (m) A further AGM was then held on 3 August 2005. An item under the heading "business arising/carport roof glare reconsideration" was set out in the minutes. Under that heading, it states the following:
"D Rodriguez opened further debate on carport glare situation.
D Rodriguez was scathing of the majority of owners' decision to allow the carport roofing to be altered, but at the minority owners' cost. D Rodriguez and E Snowball stated there was still a problem with glare after 12 months had elapsed.
M Maisey remarked that at any time of the year the sun was a natural glare feature in the afternoon and this was not considered to be a detrimental aspect to the investment potential or livelihood.
I Hills remarked that the new owner of Unit 21 purchased the property at a price which indicated that the investment value of the property was not being adversely affected by glare feature, whether it be the sun or on the ocean or environs.
It was pointed out that the carport roof glare situation had been well argued in the past and that a decision had been made at the EGM of 9 September 2004, for the minority parties to take opportunity for a change to be made. This opportunity was not taken up by any of the minority parties.
It was suggested by the chair that a motion be put to the meeting to reconsider the replacement of the carport roof be carried out at the sole cost of the strata company.
- D Rodriguez moved and E Snowball seconded that the replacement of the carport roof be carried out at the sole cost of the strata company.
The motion was put to the meeting with three owners – Units 11, 15 and 21 – voting in favour of the motion and the remainder of owners against with no abstention. The motion was defeated on a show of hands.
The chair concluded that the strata company had opportunity to readdress the past 12 months with respect to the glare feature and mirrored its decision at the past EGM of 9 September 2004. Painting was not an option, indicated by the majority of owners present."
Submissions made by other lot owners
14 It was stated at the outset that the other lot owners were given the opportunity to file submissions in this matter. It appears that Shirley Moir, by her attorney David Moir, supports the application.
15 The remainder of submissions, however, were against the application made by the applicant.
Consideration
16 The issue that arises in this case for consideration is whether the strata company has unreasonably refused to consent to the proposal by the applicant, the owner of Lot 15, to repaint the carport roofs in a darker colour. The lot owners obviously agreed to a refurbishment of the property which was apparently the subject of a meeting in April 2003. Although the minutes of that meeting have not been provided by the applicant, the letter from Healy Pynt dated 14 January 2004, has set out that the minutes for the April 2003 EGM note that the majority of owners approved the modernisation of the property and unanimously approved the plan of action which included new roofs. The issue of the roof type and colour scheme was the subject of a further AGM in August 2003. The problems appear to have arisen following the October 2003 EGM, where it was noted in the minutes simply that "the Council of Owners met after the meeting to discuss roof colour". It would appear from the chronology filed by the applicant that the carport roofs were replaced
(Page 14)
- some time between 9 October 2003 and 13 November 2003 with the "surf mist" colorbond roof.
17 Since that time, there has been objections by the applicant and other lot owners in respect to the colour of the carport roofs. As a result of those objections, it was resolved at an EGM held on 16 February 2004 that a further review of the colour of the carport roofs await the completion of re-roofing of the main roofs of the units. At that meeting, it was also resolved unanimously that the re-roofing of the eastern block and western block of the strata plan be authorised using a "wind spray" colorbond "ultra" roofing material (that is, a darker colour than used on the carport roofs).
18 The review of the carport roof colour came before a meeting of the lot owners at an AGM of 3 August 2004. The meeting resolved and appointed a subcommittee to determine what course of action should be taken to agree or to disagree to repainting the carport roofs, and to hold a further EGM on 9 September 2004 to discuss the subcommittee's findings.
19 The minutes of the EGM held on 9 September 2004, at which the applicant was present, indicate that the subcommittee advised that if the carport roofs were repainted, most painters would not give a warranty. It appears from the minutes that the subcommittee also advised the meeting of their findings in respect to glare. The subcommittee's recommendations were that the cost of any change be borne by the minority wanting change, and that any change to the carport roofing be made using ultra bond colorbond product of a grey colour. The subcommittee did not recommend that the carport roofs be painted.
20 The lot owners then appear to have had the opportunity to comment on the subcommittee's findings. A motion was then put to the meeting that the strata company not paint the carport roofs based on the recommendations of the subcommittee's findings. Interestingly, that motion on notice was passed by a unanimous show of hands. The Tribunal notes that the applicant was present at that meeting. The only person who did not take part in the vote was the representative for Lot 11, who abstained from voting. It appears, therefore, that the applicant agreed with all of the lot owners (except the owner of Lot 11 who abstained from the vote) not to repaint the carport roofs as recommended by the subcommittee.
(Page 15)
21 At that same meeting, a further motion was unanimously passed that the strata manager be nominated as the representative, on behalf of the strata company and that he negotiate a satisfactory outcome of cost sharing with the minority group, to replace the front carport roofs with a similar material and colour to that used on the main roofs and to report the outcome to all owners for ratification by majority of strata owners. It seems, therefore, that the applicant agreed at the meeting of 9 September 2004 with all other lot owners that the carport roofs not be repainted but rather they be replaced with a similar material and colour to the main roof, and negotiations take place between the strata manager and the minority group in respect to cost sharing. There is no evidence before the Tribunal as to what steps the strata manager took to negotiate a cost sharing regime with the minority group to replace the carport roofs with a similar material and colour to the main roof.
22 However, at the AGM held on 3 August 2005, the issue of the carport roofs was again discussed. The applicant was also present at that meeting. The applicant and the owner of Lot 11 stated there was still a problem with glare after 12 months had elapsed, and they put a motion to the meeting that the replacement of the carport roofs be carried out at the sole cost of the strata company. The motion put by the applicant and the owner of Lot 11 was not in respect to the painting of the carport roofs but replacement with another colorbond material. It appears from the minutes of the meeting that the motion was defeated by majority on a show of hands.
23 The application seeks an order that the carport roofs be painted a darker colour. The ongoing complaint by the applicant and some of the other lot holders was that the "surf mist" colorbond roof put on the carports created glare. In this case, it appears that once the issue concerning the roofing of the carports in the "surf mist" colorbond was raised, the matter became the subject of discussion by the lot owners at another four meetings of the strata company on 16 February 2004, 3 August 2004, 9 September 2004 and 3 August 2005.
24 At the EGM on 16 February 2004, a resolution was unanimously carried that the re-roofing of the eastern block and western block of the strata plan building renovation improvements take place using "wind spray" colorbond "ultra" roofing material.
25 At that same meeting, it was decided to delay any further decisions concerning the re-roofing of the carports until the re-roofing of the eastern block and western block of the strata plan had taken place.
(Page 16)
- Unfortunately, the notes of 16 February 2004 do not make clear whether the decision to proceed with roofing the eastern and western blocks with a different colour to that used on the carports was primarily due to the concerns about glare or whether it related to the possibility of legal action, which was raised by the owner of Lot 11 in her letter dated 11 January 2004. The Tribunal notes that in correspondence dated 16 May 2006 from Mr Ardagh, who is an owner of Lots 8 and 10, he recalled that the final agreement to support the use of the dark grey roof colour for the unit blocks was made as a result of threatened litigation.
26 It is necessary for the Tribunal to decide whether or not the applicant can show that, in this case, the strata company has unreasonably refused to consent to a proposal by the applicant to effect alterations to the common property. The applicant's claim is seeking orders that the carport roofs be repainted. The issue of the colour for the carport roofs was the subject of four meetings of the strata company. More importantly, however, at the meeting of the strata company on 9 September 2004, at which the applicant attended, the strata company unanimously passed a motion that the strata company not paint the carport roofs based on the recommendations of the subcommittee, who had been appointed by the strata company at a meeting on 3 August 2004, to determine what course of action should be taken in respect to the ultimatum by the owner of Lot 11 to repaint or face legal proceedings.
27 It is clear that as a result of the meeting on 9 September 2004, the applicant agreed with the other lot owners that repainting of the carport roofs should not occur. The issue concerning repainting the carport roofs has been the subject of extensive discussion by the strata company at no less than four meetings at which the applicant was present. Indeed, the applicant voted unanimously with the other lot owners, who participated in the vote on 9 September 2004, that repainting of the carport roofs not take place. It seems that the applicant has now changed her mind in respect to that decision. The Tribunal considers that the strata company has not acted hastily in this matter and has endeavoured to resolve this issue democratically. It has given adequate time and attention to this issue which has been ongoing since 2003. The applicant has had sufficient opportunity to attend all the relevant meetings of the strata company concerning this issue. The Tribunal is not satisfied, in those circumstances, therefore, that the applicant has shown that the strata company has unreasonably refused to consent to the repainting of the carport roofs.
(Page 17)
28 The application should not succeed under s 85 of the ST Act as the applicant has failed to establish that the strata company has unreasonably refused to consent to a proposal by the applicant to effect alterations to the common property.
Orders
29 The Tribunal makes the following order:
1. That the application be dismissed.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J HAWKINS, MEMBER
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