The Owners of 222 Walter Road, Morley SP 18804 v Whitehouse

[2006] WADC 180

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   THE OWNERS OF 222 WALTER ROAD, MORLEY SP 18804 -v- WHITEHOUSE & ANOR [2006] WADC 180

CORAM:   DEPUTY REGISTRAR HARMAN

HEARD:   11 SEPTEMBER 2006

DELIVERED          :   13 NOVEMBER 2006

FILE NO/S:   CIV 1046 of 2004

BETWEEN:   THE OWNERS OF 222 WALTER ROAD, MORLEY SP 18804

Plaintiff

AND

MARK EDWARD  WHITEHOUSE
CAROL ANN  WHITEHOUSE
Defendants

Catchwords:

Execution of a judgment debt - Strata Titles Act 1985 - Application for a Property (Seizer and Sale) Order under Civil JudgmentsEnforcement Act 2004 against a proprietor of a lot on a strata plan where action commenced by the strata company

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Not applicable

Defendants:     Not applicable

Solicitors:

Plaintiff:     Mossensons

Defendants:     E N Stamatiou & Co

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. DEPUTY REGISTRAR HARMAN:  The plaintiff filed a notice of discontinuance upon which the defendants taxed their costs.  On the 11 September 2006 I considered the application of the defendants to execute against the property of a registered proprietor of a lot in a strata plan in circumstances where the proceedings that gave rise to the order had been commenced by the relevant strata company.  That application was unsuccessful.  The solicitors for the applicants sought reasons for that determination which I now provide.

2. Section 33 of the Strata Titles Act 1985 is as follows:

   (1)Where the proprietors of the lots the subject of a scheme are jointly entitled to take proceedings against any person or are liable to have proceedings taken against them jointly (any such proceedings being proceedings for or with respect to common property), the proceedings may be taken by or against the strata company and any judgment or order given or made in favour of or against the strata company in any such proceedings shall have effect as if it were a judgment or order given or made in favour of or against the proprietors.

   (2)Where a proprietor is liable to make a contribution to another proprietor in respect of a judgment debt arising under a judgment referred to in subsection (1), the amount of that contribution shall bear to the judgment debt the same proportion as the unit entitlement of the lot of the first‑mentioned proprietor bears to the aggregate unit entitlement.

3. In this case the action was commenced by the plaintiff in order to recover:

   "the sum of $48,743.22 being for unpaid strata levies for lot 2, unit 2/222 Walter Road, Morley as at 21.02.04, particulars where of have been rendered".

4. In the absence of any evidence it would be difficult to conceive that the action was the product of the proprietors of the lots the subject of a plan having taken proceedings against the defendants.  It is appropriate, therefore, to accept that the action was commenced as it purports to have been commenced by the plaintiff for recovery of strata levies due to it by the defendants.