THE OWNERS OF 10 KANIMBLA ROAD BICTON STRATA PLAN 37928 and DI SILVIO
[2007] WASAT 169
•27 JUNE 2007
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: THE OWNERS OF 10 KANIMBLA ROAD BICTON STRATA PLAN 37928 and DI SILVIO [2007] WASAT 169
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 27 JUNE 2007
FILE NO/S: CC 163 of 2007
BETWEEN: THE OWNERS OF 10 KANIMBLA ROAD BICTON STRATA PLAN 37928
Applicant
AND
FRANK DI SILVIO
Respondent
Catchwords:
Strata titles Breach of behavioural by-laws Application for order under s 95 of the State Administrative Tribunal Act 2004
Legislation:
State Administrative Tribunal Act 2004 (WA), s 95, s 95(1), s 95(5)
Strata Titles Act 1985 (WA), s 42(7), s 83(1), Sch 1(1)(2), Sch 2(12)
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant: N/A
Respondent: N/A
Solicitors:
Applicant: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
1)The applicant applied for orders that the respondent, as owner of a lot within Strata Plan 37928, take all reasonable steps to prevent his brother, as occupier of the lot, from acting in breach of the by-laws of the strata company, including if necessary the removal of his brother from the lot. An order was also sought that s 95(1) of the State Administrative Tribunal Act 2004 (WA) apply to the decision.
2)The material provided with the application was not disputed by the respondent and constituted a breach of the relevant by-laws.
3)The Tribunal accordingly granted the application.
The application and background
On 1 February 2007, the applicant applied for orders against the respondent under s 83(1) of the Strata Titles Act 1985 (WA) (the ST Act). The orders sought were not in an appropriate form but, in the main, reflected an intent that the applicant be made responsible for the actions of his brother, Erminio Di Silvio, who is the occupier of Lot 10 on Strata Plan 37928. Lot 10 is owned by the respondent.
Following a directions hearing on 1 March 2007, the application was amended to reflect that the applicant sought the following orders:
1)That Frank Di Silvio take all reasonable steps to ensure that the occupier of Unit 10 Kanimbla Road, Bicton, Erminio Di Silvio, not act in a manner which constitutes a breach of Sch 1 by‑law 1(2) so as to:
(i)unreasonably interfere with the use of common property by other proprietors/occupiers, or residents;
(ii)use Unit 10 in such a manner or for purposes which cause a nuisance to any occupier of another lot or the family of such occupier;
including, if that be his only means of preventing such behaviour, the removal of Erminio Di Silvio from the unit; and
2)that an order be made under s 95 of the State Administrative Tribunal Act 2004 (WA) that a breach of order (1) constitutes an offence for which a fine of $10 000 may be imposed.
The Tribunal also made an order for substituted service, because of difficulties which the applicant was having in effecting service of the application on the respondent. That order permitted service of the application to be made by way of ordinary pre-paid mail addressed to the respondent's place of employment in an envelope marked "private and confidential". The applicant subsequently filed a declaration of service reflecting that the application had been sent to the respondent at Lottery West, PO Box 1113, Osborne Park WA 6197. At a further directions hearing, in which the respondent failed to appear, Ms P Sanders, the secretary and treasurer of the applicant, confirmed compliance with the order for substituted service. The Tribunal directed that the matter be determined on the documents.
The documentation supporting the application reflect the following:
1)The respondent purchased Unit 10/Lot 10 Kanimbla Road in approximately mid-2000 and, for some time, resided in the premises.
2)In about November 2006, other owners in the scheme noticed that someone, later identified as Erminio Di Silvio, the respondent's brother, had taken up occupation of Lot 10.
3)From the time of taking occupation, Erminio Di Silvio had acted in an abusive manner towards other owners, using loud and filthy language.
4)When abusing other owners in the above manner he also used rude gestures.
5)At night, Erminio Di Silvio would wander around the scheme and was a cause of concern to other owners.
6)A nurse of the psychiatric department of Fremantle Hospital attended at the scheme. It was ascertained that Erminio Di Silvio had been a patient at the hospital.
None of the above allegations have been disputed by the respondent.
The application also reflects that there has been difficulty in the past in communicating with the respondent. Notes left by tradespersons were not responded to for many months. There has been no response to a letter from the applicant, dated 25 November 2006, requesting to be supplied with contact details, in order that the strata roll could be kept up to date. The respondent has ignored the application served at his place of employment and notices from the Tribunal addressed to the respondent at Unit 10, 10 Kanimbla Road in relation to the directions hearings held on 1 and 29 March 2007.
The strata scheme and by-laws
The strata plan for 10 Kanimbla Street, Bicton, Strata Plan 37928, was registered on 3 May 2000. The parcel comprises of ten single storey brick and tile dwellings, each constructed on one of 10 lots, and a common property driveway. The strata plan reflects that each of the 10 lots includes as part of the lot adjacent external areas and the only common property is the driveway access to the lots. There are no notifications of any changes to the by-laws and accordingly the standard by-laws set out in Sch 1 and 2 to the ST Act apply.
Schedule 1 by‑law 1(2) provides, relevantly, that a proprietor, occupier or other resident of the lot shall not use the lot or permit it to be used in such manner or for such purposes as causes a nuisance to any occupier of another lot (whether a proprietor or not) or the family of such an occupier.
Schedule 2 by ‑law 12 provides that a proprietor, occupier or other resident shall not, relevantly, make undue noise in or about any lot or common property.
Considerations
Section 42(7) of the ST Act provides that a proprietor or mortgagee in possession of a lot shall take all steps that are reasonable in the circumstances to ensure that every occupier or other resident of that lot complies with the by‑laws for the time being in force.
On the undisputed information outlined above, the respondent's brother Erminio Di Silvio has acted in breach of both Sch 1 by‑law 2 and Sch 2 by‑law 12. The respondent is obliged to take reasonable steps to ensure that his brother as the occupier of Lot 10 complies with the by-laws for the time being in force.
There has been no evidence provided by the respondent to show that any steps have been taken to attempt to control his brother's behaviour. There is no evidence of the basis upon which Erminio Di Silvio occupies the lot or any restraint on the respondent's ability to remove his brother from the premises, as a remedy of last resort.
There is no evidence to support the application for an order preventing interference with the use of common property by other proprietors. The applicant is, however, entitled to an order in all other respects substantially as sought. Further, given the applicant's history of dealings with the respondent, and the respondent's failure to respond in any way to the application or the notices sent by the Tribunal, this is an appropriate case for an order to be made under s 95 of the State Administrative Tribunal Act 2004 (SAT Act), the effect of which is that a person who fails to comply with the Tribunal's order commits an offence for which a penalty of up to $10 000 may be imposed. This is a criminal sanction, so non-compliance will entitle the applicant to lay a criminal complaint with the police in order that prosecution proceedings may be commenced against the respondent. It is a requirement of s 95 that a copy of the decision, which a judicial member or the executive officer has certified to be a true copy, and a copy of s 95 of the SAT Act, has been given personally to the person to whom the order relates. However, if the Tribunal is satisfied that it is not possible or appropriate for a person to be personally given the documents, the Tribunal may specify another method of service.
The application was originally served at Lot 10 and at least two notices from the Tribunal sent to that address have resulted in no response from the respondent. Ms Sanders, for the applicant, informed the Tribunal that the applicant is employed by Lottery West, at Osborne Park. In the circumstances, the Tribunal will make an order for substituted service of these reasons for decision, a duly certified copy of the order of the Tribunal and a copy of s 95 of the SAT Act, upon the respondent by way of ordinary pre-paid mail in an envelope marked "private and confidential".
Orders
For the above reasons the Tribunal orders as follows:
1)Frank Di Silvio to take all reasonable steps to ensure that the occupier of Unit 10, 10 Kanimbla Road Bicton, Erminio Di Silvio, not act in a manner which constitutes a breach of either Sch 1 by-law 1(2) or Sch 2 by-law 12 by using Unit 10 in such a manner or for purposes which cause a nuisance to any occupier of another lot or the family of such occupier, or by making undue noise in or about any lot upon Strata Plan 37928, including, if that be his only means of preventing such behaviour, the removal of Erminio Di Silvio, from Lot 10;
2)Section 95(1) of the State Administrative Tribunal Act 2004 (WA) applies to this decision;
3)Pursuant to s 95(5) of the State Administrative Tribunal Act 2004 (WA), the applicant may give the respondent:
(a)a copy of the decision, that is the reasons for decision and the order, that a judicial member with the executive officer has certified to be a true copy; and
(b)a copy of s 95 of the State Administrative Tribunal Act 2004 (WA);
by way of ordinary pre-paid mail addressed to the respondent's place of employment, Lottery West, PO Box 1113, Osborne Park, WA 6917 in an envelope marked "private and confidential".
I certify that this and the preceding [15] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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