STANN and THE OWNERS OF 'BEAU VISTA' STRATA PLAN 12008
[2015] WASAT 57
•25 MAY 2015
STANN and THE OWNERS OF 'BEAU VISTA' STRATA PLAN 12008 [2015] WASAT 57
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 57 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:1772/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS N OWEN-CONWAY (MEMBER) | 25/05/15 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | GLYNN JOSEPH STANN THE OWNERS OF 'BEAU VISTA' STRATA PLAN 12008 |
Catchwords: | General meetings Resolutions Common property Simple majority No general power to review the resolutions passed |
Legislation: | Strata Titles Act 1985 (WA), s 11, s 20, s 35(1)(b), s 39(1)(b), s 83(1), Sch 1 |
Case References: | Stann and The Owners of Beau Vista Strata Plan 12008 [2012] WASAT 227 |
Orders | On the application heard before Member Natasha Owen-Conway it is on 25 May 2015 ordered that:,1. The application is dismissed. |
Summary | The applicant sought orders to overturn two resolutions of the lot proprietors in general meetings concerning the removal of common property supplied and funded electricity to the garages and a boat shed, which structures formed part of the individual lots. The applicant was present at the meetings but was not able to vote because of arrears in payment of levies. The applicant did not vote at all in respect of the resolutions and did not voice any objection thereto. The respondent did not challenge the resolutions until after the work had been undertaken by the respondent, some months after the resolutions were passed. The applicant advanced the argument that the resolution was not financially justified. Section 83 of the Strata Titles Act 1985 (WA) does not confer general jurisdiction on the Tribunal to review the decisions taken by the lot proprietors in general meeting. The application was dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STRATA TITLES ACT 1985 (WA) CITATION : STANN and THE OWNERS OF 'BEAU VISTA' STRATA PLAN 12008 [2015] WASAT 57 MEMBER : MS N OWEN-CONWAY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 25 MAY 2015 FILE NO/S : CC 1772 of 2014 BETWEEN : GLYNN JOSEPH STANN
- Applicant
AND
THE OWNERS OF 'BEAU VISTA' STRATA PLAN 12008
Respondent
Catchwords:
General meetings Resolutions Common property Simple majority No general power to review the resolutions passed
Legislation:
Strata Titles Act 1985 (WA), s 11, s 20, s 35(1)(b), s 39(1)(b), s 83(1), Sch 1
Result:
Application dismissed
Summary of Tribunal's decision:
The applicant sought orders to overturn two resolutions of the lot proprietors in general meetings concerning the removal of common property supplied and funded electricity to the garages and a boat shed, which structures formed part of the individual lots. The applicant was present at the meetings but was not able to vote because of arrears in payment of levies. The applicant did not vote at all in respect of the resolutions and did not voice any objection thereto. The respondent did not challenge the resolutions until after the work had been undertaken by the respondent, some months after the resolutions were passed. The applicant advanced the argument that the resolution was not financially justified. Section 83 of the Strata Titles Act 1985 (WA) does not confer general jurisdiction on the Tribunal to review the decisions taken by the lot proprietors in general meeting. The application was dismissed.
Category: B
Representation:
Counsel:
Applicant : In Person
Respondent : Mr H Hordyk (Strata Secretary)
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Stann and The Owners of Beau Vista Strata Plan 12008 [2012] WASAT 227
The application
1 On 19 November 2015, Mr Stann (applicant), a proprietor of Lot 8 on strata plan 12008, lodged an application in the Tribunal, pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (ST Act), in which he sought an order directing The Owners of 'Beau Vista' Strata Plan 12008 (respondent):
To reinstate the electricity to the garages and boat shed as was existing since construction.
- The grounds for the order sought are stated as follows:
No substantiating evidence was produced to justify the disconnection of the electricity to the garage and boat shed.
2 The proceeding was the subject of an initial directions hearing at which time, orders were made for each party to file supporting evidence and submissions and for the matter to be determined on the papers. Both parties sought that the proceeding be determined upon the documents and without a hearing. The relevant documents before the Tribunal are referred to in the context of the facts.
The facts
3 The facts may be stated shortly and are not contentious:
1) The applicant is a proprietor of Lot 8 in strata plan 12008, which is the largest lot in the parcel and comprises 191 m2. Notwithstanding that Lot 8 is the largest lot, each of the eight lot proprietors hold one unit entitlement and therefore they each contribute equally to the expenses of the respondent by way of the payment of levies.
2) Lot 8 comprises four parts. One part of Lot 8 is a 35m² double garage with double garage doors (Lot 8 garage). Another part of Lot 8 comprises a 31m² boatshed (boatshed). No other lot is comprised of a boatshed. All other lots comprise an area being a garage.
3) There are certain areas of common property designated on the strata plan as areas for exclusive use for Lot 8, being a barbecue area, carport, and veranda or courtyard type areas. These areas are not relevant to the issues before the Tribunal in this proceeding.
4) All of the part lot garages, including the Lot 8 garage and the boatshed, were at all times until 1 September 2014 supplied with electricity sourced from the common property metered power supply from Synergy except Lot 5. Each lot that was comprised of, the residential dwelling was supplied power by way of an individually metered power supply to each residential dwelling by Synergy. Each occupier, tenant or proprietor of the residential part of the individual lots paid for the power consumed within that part of each lot. No reason was advanced why parts of every lot were powered by the common property power supply (the garages and the boatshed).
5) At an Annual General Meeting (AGM) held on 3 May 2014, a resolution was 'Carried':
… that all owners are given a date by which the common power to the garages and boat shed will be disconnected by a [licensed] contractor on behalf of the Strata Council. Each owner will need to pay for reconnection by a licensed electrician if required. 2 Quotations have been received. The Secretary, Harry Hordyk, to attend. At least 1 month['s] notice required. Seconded: Trish Marshall. Carried.
6) No dissent was recorded on the carrying of that resolution (resolution 1).
7) The applicant was marked in the minutes of the AGM of 3 May 2014 as being present.
8) The minutes of the AGM of 3 May 2014 record that the applicant:
… is not financial and it is ruled that he cannot move motions or vote on any matter. - Carried.
9) There is no record in the AGM minutes of 3 May 2014 of any objection by the applicant to the proposal comprised in resolution 1.
10) The AGM minutes of 3 May 2014 record that an Extraordinary General Meeting (EGM) would be held on 5 July 2014.
11) The agenda for the EGM on 5 July 2014 notes an item of business as follows:
8. Finalise the electrical disconnection/reconnection, as already decided, of garages and boat shed from the corporate Synergy metre account to the individual unit metres.
12) At the EGM on 5 July 2014, the minutes of the AGM held on 3 May 2014 were confirmed as representing a true and accurate record of that meeting.
13) It was recorded in the minutes of the EGM held on 5 July 2014 that the applicant was present, but it is also noted therein that he is 'Not financial'.
14) A resolution (resolution 2) was as noted in those minutes as follows:
5. Robyn Coleman moves that a formal motion be made to confirm the recent AGM decision, for the purpose of the records, to have all the unit garages and the boat shed disconnected from the common services power meter and be connected to the individual unit power meters. This will preclude any unauthorised use of corporate power. The present setup it is open to abuse and is not equitable.
15) No dissent is recorded in the vote on resolution 2. The minutes of the 5 July 2014 EGM do not record any statement of opposition by any person in attendance of that meeting.
16) A further resolution was passed concerning the cost of undertaking the disconnection and that was also noted as having been carried.
17) The only evidence before the Tribunal as to what was discussed or not discussed at the two meetings is the statement by Ms Robyn Coleman to the Tribunal in which she states:
We have no knowledge of written correspondence from Mr Stann disputing or objecting to the disconnection of the common power from the garages and boat shed.
At the Annual General Meeting held on 3rd May 2014, Mr Stann enquired whether Mandjar Electrics could be considered as a Contractor to carry out the required work. Mr Stann was advised to put a quote in writing to the Strata Company. No quote was received.
- The last sentence infers that the applicant held no objection to the disconnection of the common property metered power to the garages and the boatshed.
18) The applicant filed an email dated 5 May 2014 addressed to Mr Harry Hordyk (the secretary of the respondent) stating:
If the power to the garages is disconnected I will be once again initiating legal action against the Body Corporate.
19) To the extent that the email above indicates that the applicant held an objection to resolution 1 and would hold an objection to resolution 2, it is inconsistent with Ms Coleman's statement that the respondent had no knowledge that the applicant disputed that the common property metered power should be disconnected from the garages and the boatshed. It is possible that the applicant gave no indication at the AGM on 3 May 2014 that he objected to proposed resolution 1, but it appears inconsistent with Ms Coleman's evidence that the applicant implicitly held no objection because he enquired whether he could undertake the disconnection work. The applicant has not sought to challenge the relevant minutes or the statement by Ms Coleman, and has not adduced any evidence or other information to suggest that the relevant minutes and Ms Coleman's statement is incorrect. However, it is clear that the applicant had not done as he expressed he intended to do in his 5 May 2014 email and pay his outstanding levies so that he was entitled to vote at the forthcoming 5 July 2014 EGM. The documents do not explain why it is that the applicant had not made himself financial and capable of voting at the 5 July 2014 EGM, given his apparent proposed objection and his stated intentions to prepare himself to vote on the issue at the EGM.
20) On 4 August 2014, the applicant sent a further email to Mr Hordyk stating:
Now that I'm up to date with my Body Corporate fees, despite your appointed Caretaker continuing to take flash photos of me leaving and entering Beau Vista, if it makes you happy to spend Body Corporate money to disconnect power to the garages and boat shed GO AHEAD.
I will revert back to what I did before and operate the roller doors manually. You can also be sure to get dragged back to the State Administrative Tribunal to answer for your actions.
- This tends to suggest that the applicant only paid his levies at or about 4 August 2014 and not when he needed to be able to vote on 5 July 2014, to the extent that a further resolution was required.
21) The secretary of the respondent informed all lot proprietors on 10 July 2014 that resolution 2 had been passed on 5 July 2014; disconnection of the common property power supply to the parts of lots comprising boatshed and garages was expected to take place on the morning of 1 September 2014 at approximately 8:30 am; and that connection of power to each part lot that had been disconnected from the common property power supply, was the responsibility of each lot proprietor, and he supplied three independent electrical contractors' quotations for the cost of connection of each part lot to the individual lot proprietors' metered power supply.
22) On 1 September 2014 the common property power supply was disconnected from the part lots comprising the garages and the boatshed, including the applicant's garage and boatshed.
23) This disconnection affected all lot proprietors save for the proprietor of Lot 5, who had disconnected his part Lot 5 garage from the common property power supply and connected it to the Lot 5 metered power supply some years earlier.
24) The applicant has not connected the Lot 8 garage and/or the boatshed to the Lot 8 metered power supply. Instead, he has operated the electronic garage and boatshed doors to part Lot 8 by way of a battery and inverter in each building, which batteries are powered by way of a series of electrical extension cables that run over the common property to a power source situated in his residential dwelling as depicted in the photographs supplied by the applicant and as explained by Ms Coleman in her letter to the Tribunal.
The issue
4 The issue in this proceeding is whether the respondent was entitled to disconnect the Lot 8 garage and the boatshed from the metered common property power supply paid for by the respondent and contributed to equally by all. The respondent contends that it was entitled to do so following the passing of resolutions 1 and 2.
5 The applicant contends that the respondent was not so permitted, as it did not have sufficient justification to do so.
6 The dispute raises two sub issues:
1) whether the respondent is entitled to disconnect the individual part lots from the common property power supply in discharge of its duty to control and manage the common property for the benefit of all of the lot proprietors; and
2) whether a resolution in general meeting was required and what kind of vote was required for such a resolution.
7 Neither party had sufficiently identified the relevant facts or legislation for the Tribunal.
8 The parties also raised a number of incidental matters which are not relevant to the proceeding before the Tribunal initiated by the application.
The statutory framework
9 Section 35(1)(b) of the ST Act confers on the respondent the duties of controlling and managing the common property for the benefit of all the lot proprietors. The ST Act provides for the raising of levies from lot proprietors in accordance with their unit entitlements (unless otherwise provided for by way of particular by-laws). The respondent may take action to control and manage the common property through the action of the council of owners on a vote of council members (see Sch 1 Bylaw 4(1) of the ST Act), although it is common (and sometimes necessary) for the council of owners to put matters before the members in a general meeting to obtain a resolution on any proposal (for example, where it has been agreed in a general meeting or where the ST Act requires, such as in the case of an application for a structural alteration to a lot). Unless otherwise required or specified under the ST Act, resolutions may be passed at a general meeting by a simple majority (see Sch 1 Bylaw 12(6) of the ST Act) on a vote taken by a show of hands, unless a poll can be and is demanded, of which there is no evidence in this proceeding (see Sch 1 Bylaw 12(8) of the ST Act).
10 Section 11 of the ST Act provides for an implied easement in favour of a lot proprietor for the passage and provision of electricity through cables and wires 'for the time being existing in the land comprising the parcel to the extent to which those wires and cables are capable of being used in connection with the enjoyment of that' proprietor's lot. A lot proprietor, mortgagee in possession and an occupier of any lot is prohibited from interfering with that easement. However, the strata company is not prohibited from interfering with such an easement. Unlike in the case of a grant of easement, no special kind of vote need be demonstrated at a general meeting of the lot proprietors to resolve to surrender the implied easement (see s 20 of the ST Act where a resolution without dissent is required for the surrender of a granted easement).
Submissions
The respondent's submission:
11 Many years before this dispute, power had been connected and supplied to the common property to operate the electronic security gates to the parcel and lighting throughout the common property areas, and no doubt for the provision of GPOs throughout the common property for the benefit of all of the lot proprietors. The common property metered power was supplied to the part lot garages and boatshed. Any person consuming power in those areas was using power that was to be paid for by all of the lot proprietors via their levies. The residential units comprising the part lots were individually metered, and power used in those residential dwellings was paid for by the occupier or lot proprietor of the residential dwellings. The objective sought to be achieved by the respondent was to prevent disproportionate use of common property power by one or more members or the potential for the same, where all members contributed to the cost of the power equally through the raising of levies to pay for the respondent's expenses of discharging its s 39(1)(b) ST Act duties. The cost of achieving this objective was a moderate cost to the respondent for the disconnection and a moderate cost to the lot proprietors to connect their garages and the boatshed to their individually metered power supply. The two meetings of the lot proprietors were called to allow the lot proprietors in a general meeting to vote on the proposals and the proposals were passed at those meetings.
The applicant's submission
12 The cost of the applicant's usage of the common property power is insignificantly small, and does not justify the cost to the respondent of disconnection, and the cost of now connecting the Lot 8 garage and the boatshed to the Lot 8 residential dwelling power supply is disproportionately high.
Consideration
13 There is no issue in this proceeding that the AGM on 3 May 2014 and the EGM on 5 July 2014 were properly called and a quorum was established at each meeting. The minutes of the 3 May 2014 AGM and the 5 July 2014 EGM record that the resolutions were 'CARRIED', which the Tribunal interprets as meaning that a vote was taken on a show of hands and a majority of the members present at the meetings, who were entitled to vote, voted in favour of the proposals. There is no dissent recorded in the minutes and there was no evidence that any person spoke against the proposals at either of the relevant meetings. In fact, the evidence of Ms Coleman suggests that the applicant implied that he was in favour of the proposal on 3 May 2014, as he queried whether he, as an electrical contractor, could be engaged to undertake the disconnection and connection work proposed. Ms Coleman says that the respondent did not know of any objection by the applicant to the proposals, although the Tribunal finds that the respondent knew as at 5 May 2014 that the applicant subsequently objected to resolution 1, and perhaps this is why the matter was the subject of a further resolution on 5 July 2014, along with a resolution on the details of when the work would be done and the cost of the disconnection and connection (the latter of which was to be borne by the individual lot proprietors). The applicant was not permitted a vote at either meeting because he was not financial and was thereby precluded from voting (see Sch 1 Bylaw 14(6) of the ST Act). Despite his expressed intention as at 5 May 2014 to make himself eligible to vote at the EGM on 5 July 2014, he did not place himself in a position where he was entitled to vote.
14 Even if the applicant had been eligible to vote at the relevant meetings, the Tribunal is not persuaded on the evidence that he would have voted against the proposals. The evidence of Ms Coleman tends to suggest that the applicant intended to quote on performing the disconnection work, and the Tribunal finds that the applicant gave no indication of any objection to resolution 1. It may be that subsequent to the AGM on 3 May 2014, the applicant decided (and told the then secretary of the respondent) that he was opposed to resolution 1, and resolved that he would vote against resolution 2 at the next meeting, but, ultimately, when resolution 2 was proposed, he had not put himself in a position to vote against it at the EGM on 5 July 2014. The applicant could have ensured that by the time of the EGM he was financial so that he could have voted. He chose not to do that and he also chose not to voice any concern or opposition to the proposals at either meeting and have his opposition minuted. In light of that, nothing he said subsequently about any dissention is at all relevant. Further, the applicant did not take any steps at all to challenge the resolutions after 5 July 2014 until the commencement of this proceeding on 19 November 2014, after all the work had been done by the respondent and the common funds expended. The lateness of this challenge is not consistent with the proposition that the applicant would have voted against resolutions 1 and/or 2. Further, if the applicant had voted against resolutions 1 and 2, there is no evidence that the resolutions would not have been carried by a simple majority.
15 There is no basis for the applicant to seek, in effect, a review of the decision of the lot proprietors in the relevant general meetings to pass resolutions 1 and 2 by a simple majority on the basis that there was insufficient reason for the resolutions to be passed, or any reason at all: see Stann and The Owners of Beau Vista Strata Plan 12008[2012] WASAT 227. The proposals were put to the lot proprietors at the relevant meetings, they voted on those proposals, and at least a simple majority agreed to the proposal. The applicant has not identified whether any other provision of the ST Act required a different process to be undertaken and unless otherwise provided for the respondent's disconnection of electricity from the garages and boatshed from the common property metered supply is an activity that falls within s 39(1)(b) of the ST Act.
16 Whilst s 11 of the ST Act does provide for an implied easement for the passage of (amongst other things) electricity in existing cables and wires in the 'parcel' to and for the enjoyment of any lot, there is no express prohibition on the strata company interfering with such an implied easement. The prohibition is directed expressly against individual lot proprietors, mortgagees in possession and occupiers of individual lots. There is no requirement in the ST Act that any interference with any such implied easement by the strata company must be by way of any resolution of the lot proprietors in a general meeting at all. The Tribunal concludes that any action to, in effect, surrender the implied easement so far as it relates to the cables and wires connected to the circuitry to the garages and the boatshed may be made by the respondent certainly after resolution by a simple majority of the lot proprietors at a general meeting, as in this matter.
Conclusion
17 For these reasons, the Tribunal concludes that the application should be dismissed and orders will be made accordingly.
Other matters
18 Although not relevant, there is no evidence to support the applicant's assertion that it will cost him $1,200 to connect the power from Lot 8's individually metered power supply to each of the Lot 8 garage and the boatshed. On the contrary, the evidence produced by the respondent establishes that the cost of connection to the individual lot electricity supply meters is substantially less than is asserted by the applicant. Further, that cost is one that the lot proprietors at the relevant meetings agreed by a simple majority would be incurred by the lot proprietors should they wish for their garages to be powered at all.
19 The respondent has raised other incidental or related issues. The first concerns whether the applicant is entitled to use Lot 8 to operate his electrical contracting business without the respondent's approval and whether one lot proprietor may take photographs of the actions of another. These matters are not properly before the Tribunal and evidence of the same are not relevant to the issue identified in this proceeding.
20 The second concerns an obstruction to the common property by the applicant. The respondent has produced evidence that the applicant is now powering the Lot 8 garage and the boatshed doors by running an electrical extension cable from within his residential dwelling across common property and into the Lot 8 garage and the boatshed. The respondent asserts that the cable is a trip hazard. The issue of whether the applicant is thereby obstructing the common property or is in breach of any other bylaws is not currently properly before the Tribunal.
Orders
1. The application is dismissed.
I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS N OWEN-CONWAY, MEMBER
0
1
1