The Owners of 12 Rye Lane Street Strata Plan 10213 v Pinnell
[2015] WASC 81
•6 MARCH 2015
THE OWNERS OF 12 RYE LANE STREET STRATA PLAN 10213 -v- PINNELL [2015] WASC 81
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 81 | |
| 06/03/2015 | |||
| Case No: | SAT:2/2014 | 3 MARCH 2015 | |
| Coram: | MITCHELL J | 3/03/15 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Enforcement order made | ||
| B | |||
| PDF Version |
| Parties: | THE OWNERS OF 12 RYE LANE STREET STRATA PLAN 10213 MARK OWEN PINNELL TANIA ROSE PINNELL GARRY ROBINSON IRENE BENNETT JASON ERIC JOHNS |
Catchwords: | Application for enforcement of orders made by the State Administrative Tribunal under the Strata Titles Act 1985 (WA) Turns on own facts |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 99 |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Applicant
AND
MARK OWEN PINNELL
First Respondent
TANIA ROSE PINNELL
Second Respondent
GARRY ROBINSON
Third Respondent
IRENE BENNETT
Fourth Respondent
JASON ERIC JOHNS
Fifth Respondent
Catchwords:
Application for enforcement of orders made by the State Administrative Tribunal under the Strata Titles Act 1985 (WA) - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 99
Result:
Enforcement order made
Category: B
Representation:
Counsel:
Applicant : Ms K Woods
First Respondent : In person
Second Respondent : In person
Third Respondent : No appearance
Fourth Respondent : No appearance
Fifth Respondent : In person
Solicitors:
Applicant : Michael Paterson & Associates
First Respondent : In person
Second Respondent : In person
Third Respondent : No appearance
Fourth Respondent : No appearance
Fifth Respondent : In person
Case(s) referred to in judgment(s):
Nil
- MITCHELL J:
(This judgment was delivered extemporaneously on 3 March 2015 and has been edited from the transcript.)
Factual and procedural background
Parties
1 The applicant is a strata company, established under the Strata Titles Act 1985 (WA) (ST Act), in respect of premises at 12 Rye Lane Street in Maddington. The strata plan for that land, No 10213, establishes 16 light industrial units configured in two rows of eight.
2 There are five respondents named in the notice of motion by which these proceedings were commenced. While they are not separately identified as first respondent and second respondent etc, I shall adopt the convention of referring to the first-named respondent as the first respondent, the second-named respondent as the second respondent and so forth.
3 The first and second respondents are the registered proprietors of lot 9 on strata plan 10213 (Lot 9).
4 The third respondent is the registered proprietor of lot 10 on strata plan 10213 (Lot 10). No relief is sought against the third respondent in these proceedings.
5 The fourth and fifth respondents are registered as the holders of the business name 'B&J Recycle'. A business trading under that name has operated from Lots 9 and 10, and continues to operate from Lot 9.
6 It is not clear whether the fourth respondent continues to be a partner of a firm which operates 'B&J Recycle'. On 23 June 2014 an undated note was left at the applicant's complex, purportedly from the fourth respondent, indicating that she and the fifth respondent were no longer 'working partners' and that she was not 'part of the business'. It has not been shown that notice of these proceedings has been served on the fourth respondent, and the applicant does not pursue any relief against her.
Tribunal orders
7 On 19 June 2014 a member of the State Administrative Tribunal (Tribunal) made orders in proceedings brought by the applicant against the respondents. The orders made by the Tribunal included the following:
1. The first and second respondents shall take all reasonable steps to ensure that the fourth and fifth respondents, being the occupiers of Lot 9:
(a) conduct all of their business activities within the confines of Lot 9 and the fenced off portion of common property immediately behind and abutting the South-western boundary of that Lot …; and
(b) not act in a manner which constitutes a breach of any Schedule 1 By-law 1(2) and Schedule 2 By-laws 1, 2, 3, 4, 5, 6, 8, 9, 11, 12 and 14 including, if that be their only means of preventing such behaviour, the removal of the fourth and fifth respondents from Lot 9; and
(c) comply with these Orders.
3. To the satisfaction of the council of the Strata Company, the fourth and fifth respondents shall between them perform the following tasks:
(a) by not later than 15 July 2014 remove from the common property all tyres, pallets, steel, containers, machinery and other material related to their occupation and use of Lots 9 and 10; and
(b) by not later than 8 August 2014 effect repairs to the communal driveway; fencing; kerbing, electrical meter box, the external wall surface to Lot 9 and other common property damaged by them as a result of their use of the common property during the course of the conduct of their business.
6. The fourth and fifth respondents shall with immediate effect cease to place or store any additional tyres, pallets, steel, containers, machinery and other material on common property that were not there at the time of these orders, unless written approval is given by the applicant for such storage or placing.
Evidence
8 Affidavit evidence filed by the applicant indicates that tyres and other materials associated with the operation of the business 'B&J Recycle' have not been removed from common property and continue to be stored on common property, and that additional material has been placed on the common property by the fifth respondent and employees of the business since the time of the Tribunal's orders. Damage to the common property has not been repaired and has continued to be caused by the activities of those associated with the business.
9 The evidence also indicates that the activities of the business are having a deleterious effect on the occupiers of other units in the strata complex and the applicant. As a consequence the applicant is having difficulty in obtaining insurance for the complex and has been given notice by its current insurer that a $100,000 general excess has been imposed until all tyres are removed. Access to other premises has been impeded by the materials associated with the business 'B&J Recycle'.
10 The affidavits indicate that the third respondent evicted the fifth respondent from Lot 10 on or about 21 May 2014. Since that time the business has ceased to operate from Lot 10.
Filing of Tribunal's orders in this court
11 On 24 December 2014 the applicant filed at this court:
(a) a certified copy of the Tribunal's orders;
(b) an affidavit of Robyn Elaine de Mamiel sworn 22 December 2014 deposing as to the non-compliance with the Tribunal's orders; and
(c) a certificate signed by the President of the Tribunal that orders 1 - 6 of the Tribunal's orders were appropriate for filing in the Supreme Court.
12 From that date, by force of s 86(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), orders 1 - 6 of the Tribunal's orders were taken to be orders of this court and may be enforced accordingly.
Enforcement application
13 By notice of motion dated 17 February 2014 the applicant sought to have the first, second, fourth and fifth respondents committed to prison for contempt of court by reason of their failure to comply with the Tribunal's orders. Orders under s 99 of the Civil Judgments Enforcement Act 2004 (WA) (CJE Act) are also sought to authorise the sheriff to do the acts referred to in orders 3(a) and 6 of the Tribunal's orders at the expense of the first, second, fourth and fifth respondents. An order is also sought to authorise the applicant to do the acts referred to in order 3(b) at the expense of those respondents.
14 As I have noted, relief is no longer pursued against the fourth respondent.
The application for contempt
15 The first, second and fifth respondents all appeared in person before me today. The first and second respondents indicated that they had a defence to the contempt motion, and were prepared to present that defence today. However, they had taken only very limited legal advice in relation to that aspect of the application. The fifth respondent indicated that, after being served with the papers last week, he had contacted the Legal Aid Commission and sought forms to enable him to apply for legal aid. He had not yet made that application.
16 For reasons which I gave earlier, I decided that it was not in the interests of justice to proceed with the contempt motion today. Contempt proceedings are a very serious matter and a finding of deliberate contempt of court may lead to the committal of the contemnor to prison for a substantial term. Given the seriousness of the allegation and the consequences for the respondents if it were proven, I considered it appropriate to adjourn to allow the respondents to seek legal advice and representation. The fifth respondent required an adjournment for that purpose. While the first and second respondents indicated a willingness to proceed today, I did not feel that they fully appreciated the seriousness of the situation in which they found themselves. I considered that they should have the opportunity to further consider their position in relation to obtaining legal advice and representation.
The application for enforcement orders
17 Although I have not thought it appropriate to deal with the allegation of contempt today, I do think it is appropriate to make orders under s 99 of the CJE Act to authorise the sheriff to remove the material referred to in Orders 3(a) and 6 of the Tribunal's orders and to authorise the applicant to effect the repairs referred to in order 3(b) of those orders at the expense of the fifth respondent.
Legislation
18 Section 99 of the CJE Act provides:
(1) This section applies if a judgment requires or has the effect of requiring a person (the obligated person) to do an act.
(2) In order to enforce such a judgment, a person who is entitled to the benefit of the judgment may apply to the court for an order addressed to -
(a) the person entitled to the benefit of the judgment; or
(b) a person appointed by the court,
that authorises that person to do the act concerned, or as much of it as is practicable, at the expense of the obligated person.
(3) The court may make such an order and may do so on terms as to costs or otherwise.
(4) The court may make such an order whether or not proceedings for contempt are being taken against the obligated person.
(5) When or after making such an order the court may make any necessary ancillary or consequential order including an order providing for the expenses of carrying out the order to be determined by the court.
(6) When or after making such an order, the court may make an enforcement order under Part 4 for the purpose of enforcing the payment of -
(a) the enforcement costs associated with the order; and
(b) the expenses determined under subsection (5).
19 I am satisfied, on the balance of probabilities, that there has been a failure by the fourth and fifth respondents to comply with order 3. It appears from the affidavits filed by the applicant that materials related to the occupation and use of Lot 9 and Lot 10 by the business have not been removed from, and continue to be stored on, the common property, and that the repairs referred to in order 3(b) have not been undertaken. Given that the time for compliance with those orders has long since passed, and given the prejudice which the failure to comply with those orders and order 6 is causing to the applicant and other occupants of strata units at 12 Rye Lane Street, an order under s 99 of the CJE Act is now appropriately made.
20 In reaching the above conclusion, I have adopted the civil standard of proof and relied on evidence which includes evidence in the nature of hearsay. My findings of fact in that regard should not be taken to express any conclusion for the purposes of the aspect of the proceedings concerned with contempt of court. For the purposes of contempt, hearsay is not admissible and facts must be established beyond reasonable doubt. I should not be taken to express any view as to whether there has been 'disobedience' for the purposes of s 98 of the CJE Act, as opposed to a mere failure to comply with the Tribunal's orders. Nor should I be taken to express any view as to whether any failure to comply was a deliberate failure to comply with an order of which the relevant respondent was aware. Resolution of those questions must await the trial of the contempt charges.
21 I am also satisfied that order 6 of the Tribunal's orders, so far as it requires the fourth and fifth respondent to 'cease to store' additional material on common property, requires the fourth and fifth respondents to remove material placed on common property in contravention of that order. It is appropriate that the order authorising the sheriff to remove property extend to material placed on common property after 19 June 2014 in contravention of order 6 of the Tribunal's orders.
Expenses
22 The applicant sought that the relevant persons be authorised to do the acts at the expense of the fifth respondent. Given that orders 3 and 6 were directed to the fifth respondent, together with the fourth respondent, and have not been complied with since being made on 19 June 2014, I am satisfied that the acts required by those orders should be done at the expense of the fifth respondent. He has had ample opportunity to secure the repair and removal required by orders 3 and 6 himself.
23 The applicant initially sought orders that the cost of doing the acts referred to in orders 3 and 6 of the Tribunal's orders also be borne by the first and second respondents. During the course of the hearing counsel for the applicant abandoned that application so far as it related to the costs of removal of the material required by orders 3(a) and 6. However, the applicant maintains that the repairs referred to in order 3(b) should be undertaken at the expense of the first and second respondents.
24 I am not satisfied that the order I make today should provide that the costs of doing the acts referred to in order 3(b) of the Tribunal's orders be borne by the first and second respondents. Order 3(b) is directed to the fourth and fifth respondents. For the purposes of those orders, only the fourth and fifth respondents are 'obligated persons' within the meaning of s 99 of the CJE Act. The first and second respondents were not obliged by order 3(b) to do the acts referred to in that order.
25 Counsel for the applicant points out that the first and second respondents were obliged by order 1(c) to take all reasonable steps to ensure that the fourth and fifth respondents complied with the Tribunal's orders. However, the authority sought by the applicant under s 99 is not for the applicant to take steps to ensure that the fourth and fifth respondent make repairs required by order 3(b) of the Tribunal's orders. The enforcement order sought under s 99 of the CJE Act is not an order to enforce order 1 of the Tribunal's orders.
26 Section 99(2) only refers to the conferral of an authority for a person to do an act at the expense of an 'obligated person'. The first and second respondents are not obligated persons in relation to order 3(b) of the Tribunal's orders. In these circumstances I am not prepared to make an order under s 99(2) of the CJE Act authorising the acts referred to in order 3(b) to be done at the expense of the first and second respondents.
27 As an alternative, the applicant sought an order that the first and second respondent pay $50,000 into court to cover the repair expenses. Counsel for the applicant sought to invoke s 104 of the CJE Act as authorising me to adopt that course. However, that section only authorises applications for 'directions in respect of a matter arising under or in connection with the operation or carrying out of an order issued under this Act'. The Tribunal's orders were not orders 'issued under this Act' for the purposes of s 104. In any event, s 104 would seem to be concerned with ancillary orders, and I am not convinced that it extends to authorise the imposition of liability for the costs of action taken under s 99(2) of the CJE Act on a person other than an 'obligated person'. To read s 104 in that manner would circumvent the express limitation on the power in s 99(2) of the CJE Act, and I do not think that such an intention should be attributed to Parliament.
28 Counsel for the applicant also suggested that the alternative order she proposed could be made in the exercise of the court's inherent jurisdiction under s 16 of the Supreme Court Act 1935 (WA). However, she was unable to cite any authority for the proposition that the inherent power of the court extends to requiring a person to make an advance for the costs of a second person doing work which an order of the court requires a third person to undertake. Absent reference to any precedent, I am not convinced that the court's inherent jurisdiction extends so far.
29 Finally, counsel for the applicant referred to s 38(3) and s 38(5) of the ST Act. Those provisions may authorise the applicant to undertake work required by the Tribunal's orders, so far as they are properly characterised as work on or in relation to Lot 9, and to recover incurred expenses from the first and second respondents in a court of competent jurisdiction. However, I do not read those provisions as authorising me to require the first and second respondents to make an advance payment ahead of the expenses being incurred.
30 The conclusion which I have reached is that I should not make an order under s 99 of the CJE Act requiring the first and second respondents to meet or advance the expenses of undertaking the repairs referred to in order 3(b) of the Tribunal's orders at this stage. In reaching that conclusion, I should not be taken as indicating that the first and second respondents do not have any liability to the applicant in relation to those expenses. My ruling is simply that an order I make today under s 99 of the CJE Act should not make that provision.
Involvement of the sheriff
31 Counsel for the applicant indicated that the applicant had not entered into any discussions with the sheriff's office to see whether the sheriff is prepared to exercise authority conferred on him under s 99(2) of the CJE Act in this case, and if so on what terms.
32 The effect of the order which I propose to make will be to authorise, but not require, the sheriff to remove all material associated with the business 'B&J Recycle' placed on common property at 12 Rye Lane Street. In order to have the sheriff exercise that authority, it may be necessary for the applicant to make some arrangement with the sheriff in relation to the cost of removing the material. That will be a matter for discussion between the sheriff and the applicant. It should not be thought that a consequence of the orders I propose to make is to require the sheriff to remove material on the common property at 12 Rye Lane Street at public expense.
Dealing with property removed from the common property
33 I am prepared to make a consequential order, under s 99(5) of the CJE Act, authorising the sheriff to sell or otherwise dispose of material removed from common property pursuant to the authority granted by my orders; to apply any proceeds of sale to the sheriff's costs of doing the acts authorised by my orders; and to pay the balance of any proceeds into court. If there is a balance further directions as to its disbursement may be sought.
Determination and recovery of expenses
34 It is also appropriate that I make provision under s 99(5) for the determination of the expenses of carrying out my order, and payment of those expenses and enforcement costs. In my view the appropriate means of determining the expenses of carrying out my order is for a registrar of this court to certify that expenses incurred were reasonable, after the filing of an affidavit deposing to the expenses incurred and attaching all relevant receipts. I will direct that a property (seizure and sale) order or orders be issued under pt 4 of the CJE Act authorising the sheriff to sell the fifth respondent's property to wholly or partially satisfy the certified expenses. In my view it is unnecessary for me to specify the property which may be seized and sold pursuant to that order.
35 The approach I have described to the determination and recovery of expenses is preferable to the orders proposed in pars 2(c) and 3 of the notice of motion, which would have the effect of authorising the seizure and sale of all property of the fifth respondent (and not merely material on common property) in advance of the expenses being incurred. I do not consider that what would in effect be a winding up of the fifth respondent's assets and business is warranted, particularly in advance of the expenses being incurred and without any independent assessment of the reasonableness of the expenses.
Time at which the authority should take effect
36 On or about 12 February 2015 a solicitor for the first and second respondents wrote to the fifth respondent giving notice of termination of the fifth respondent's lease with effect from 16 March 2015. The fifth respondent indicated to me from the bar table that he was intending to vacate the premises by that date and was in the process of removing relevant material. He has not indicated that he intends to repair damage to common property which he has caused. He seeks a further opportunity to remove the property before the proposed enforcement order takes effect.
37 Given that the Tribunal's orders required removal of material by 15 July 2014, the fifth respondent has had ample opportunity to comply with the orders and is well outside the time by which those orders required action to be taken. I infer from the concern expressed by the applicant's insurer that the presence of a large number of tyres on the property creates a risk for the safety of the premises. In these circumstances, I see no warrant for further delaying the enforcement of the Tribunal's orders.
38 Of course, the orders which I propose to make will not prevent the fifth respondent from himself removing material from the common property of the strata complex. It will also leave it open to the applicant and the fifth respondent to reach some arrangement by which the fifth respondent removes material himself by a certain date. However, the authority which I propose to confer on the sheriff and the applicant may be exercised immediately on the making of the orders which I propose.
Injunction
39 The notice of motion also seeks a further injunction in relation to the placement or storage of material on the common property of the strata complex. That would require any material placed on common property after today's date contrary to order 6 of the Tribunal's orders to be immediately removed. I am prepared to make such an order against the fifth respondent, subject to its terms being clarified to make clear the material to which it refers. I am not prepared to make the order against the first and second respondents as it has not been shown that they have any current right to remove the property of the fifth respondent.
Costs
40 I am satisfied that the fifth respondent should pay the applicant's costs of and relating to today's hearing on an indemnity basis. On the material available to me, the fifth respondent has acted unreasonably by failing to do what was required by orders 3 and 6, and forced the applicant to bring an application under s 99 of the CJE Act to enforce the Tribunal's orders.
41 I propose to reserve the question of whether the first and second respondents should also be liable for the costs of today until after the contempt application has been dealt with. Questions related to their liability for costs may be affected by the extent to which they took reasonable steps to ensure the fifth respondent complied with the Tribunal's orders, failure to do so necessitating the current proceedings. The first and second respondents should not be required to address those issues in advance of the determination of the motion for contempt.
Orders
42 The applicant should file a minute of orders giving effect to these reasons, following which I will make final orders in accordance with these reasons on the papers.
Post script
43 After I gave these reasons orally, the applicant sought to vary the terms of the orders sought to authorise the applicant, as well as the sheriff, to remove material from the common property. There being no opposition to that course being adopted, I directed that the minute which the applicant will file may include additional provision for the applicant to do the acts required by orders 3(a) and 6 of the Tribunal's orders at the expense of the fifth respondent.
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