THE OWNERS OF 70 NORMA ROAD, MYAREE STRATA PLAN 24713 and SPRINGER AUSTRALIA PTY LTD
[2007] WASAT 107
•14 MAY 2007
THE OWNERS OF 70 NORMA ROAD, MYAREE STRATA PLAN 24713 and SPRINGER AUSTRALIA PTY LTD [2007] WASAT 107
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 107 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:540/2007 | 16 APRIL 2007 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 14/05/07 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application granted Terms of interim order to be finalised | ||
| B | |||
| PDF Version |
| Parties: | THE OWNERS OF 70 NORMA ROAD, MYAREE STRATA PLAN 24713 SPRINGER AUSTRALIA PTY LTD |
Catchwords: | Application for interim order Serious issue to be determined Consideration of balance of convenience and whether undertaking as to damages required |
Legislation: | Strata Titles Act 1985 (WA), s 82, s 83, s 83(1), s 104 |
Case References: | Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : THE OWNERS OF 70 NORMA ROAD, MYAREE STRATA PLAN 24713 and SPRINGER AUSTRALIA PTY LTD [2007] WASAT 107 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 16 APRIL 2007 DELIVERED : 14 MAY 2007 FILE NO/S : CC 540 of 2007 BETWEEN : THE OWNERS OF 70 NORMA ROAD, MYAREE STRATA PLAN 24713
- Applicant
AND
SPRINGER AUSTRALIA PTY LTD
Respondent
Catchwords:
Application for interim order Serious issue to be determined Consideration of balance of convenience and whether undertaking as to damages required
Legislation:
Strata Titles Act 1985 (WA), s 82, s 83, s 83(1), s 104
(Page 2)
Result:
Application granted
Terms of interim order to be finalised
Category: B
Representation:
Counsel:
Applicant : Mr R Kronberger
Respondent : Mr R Springer (Acting as Agent)
Solicitors:
Applicant : Atkinson and Associates
Respondent : N/A
Case(s) referred to in decision(s):
Nil
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Summary of Tribunal's decision
1 The applicant applied for an interim order to prevent the respondent, and owner of lots, within the strata scheme, from interfering with electrical installations on common property.
2 The respondent did not dispute that on occasions it had taken steps to reset the trip switch controlling the supply of electricity to its lots. As the electrical installations were on common property and the applicant is responsible for the management and repair and maintenance of common property, there was clearly a serious issue to be tried.
3 In considering the balance of convenience, the Tribunal acceded to representation made on behalf of the applicant, that this was not an appropriate case in which to require an undertaking as to damages. The conduct alleged was essentially admitted and the strata company was acting in the interest of all lot proprietors who would bear joint and several liability in the event of a successful claim against the strata company by anyone injured by electrocution as a result of the respondent's conduct.
4 The Tribunal considered that the balance of convenience favoured the grant of an interim order subject to adequate arrangements being put in place to ensure that the respondent could contact the applicant's managing agent or representatives of the applicant, in the event of any interruption of power supply. The parties were required to confer to enable the applicant to prepare a minute of proposed orders.
Background
5 Strata Plan 24713 was registered on 19 August 1993. The strata plan was re-subdivided on four occasions pursuant to applications registered on 13 July 1994, 22 September 1994, 22 December 1995 and 1 April 1998 and currently comprises of 36 brick and galvanised iron industrial units. The scheme is known as The Owners of 70 Norma Road, Myaree on Strata Plan 24713.
6 The respondent is the proprietor of Lots 33, 34 and 36 on Strata Plan 24713.
7 On 12 April 2007 the applicant filed in the Tribunal an application under s 83 of the Strata Titles Act 1985 (WA) (ST Act) against the respondent seeking a number of orders relating to the manner in which the
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- respondent is alleged to have used its lots and the common property including interfering with identified electrical equipment.
8 Also on 12 April 2007 the applicant filed an application against the respondent seeking an interim order under s 82 of the ST Act relating to the alleged interference with electrical equipment. The grounds stated for the interim order were expressed to be the same as those contained in the substantive application referred to above. Those grounds included a number of allegations which relate to the manner in which the respondent is alleged to have created a dangerous situation in relation to common property electricity installations.
9 In the circumstances of this application I do not think it is necessary to set out those grounds, which I incorporate by reference. In par 13 of the grounds it is asserted that the applicant believes that the unauthorised access to and interference with the electricity supply equipment has created a danger that needs to be overcome as a matter of urgency.
10 The interim application was set down for an urgent hearing on 16 April 2007. At the commencement of the hearing the applicant sought leave to amend the order by inserting the words "common property", so that the order sought is expressed as follows.
"ORDERS SOUGHT:
That the respondent, as the proprietor of Lots 33, 34 and 36 on Strata Plan 24713 must not itself by its employees, agents or contractors open by any means or otherwise interfere with any common property electricity supply dome, switching gear or related electrical installation at any time without the prior written approval of the Strata Company."
11 That application was not opposed and the Tribunal allowed the amendment.
Criteria for grant of interim order
12 Pursuant to s 82 of the ST Act the Tribunal may grant an interim order if satisfied on reasonable grounds that by reason of the urgent circumstances of the case it should do so.
13 In order to be satisfied on reasonable grounds that it should grant an order the Tribunal requires to be satisfied that:
1. there is a serious issue to be tried;
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- 2. that damages would not be an adequate remedy; and
3. that the balance of convenience favours the grant of the order.
14 In considering the balance of convenience the Tribunal considers that the applicant has furnished, or should be required to furnish an adequate undertaking as to damages.
Consideration of the interim application
15 The respondent did not specifically admit the allegations made in the grounds stated in support of the application. Ordinarily in an interim application, the determination of whether to grant relief is based on consideration of the evidence provided by the applicant, together with any undisputed evidence put forward by the respondent. It is therefore of no consequence that the respondent disputes the allegations.
16 In any event, the respondent conceded that there had been occasions, when according to the respondent, the respondent's staff had been unable to contact any representative of the applicant, or of its managing agents, as a result of which it had authorised an electrician to reset the trip switches. The reason for the switches tripping is a matter in dispute between the parties. The applicant also put in issue the information provided to the Tribunal by the respondent by pointing out that it had sought requests of proof that a licensed electrician had been used on past occasions and that proof had not been forthcoming.
17 In these circumstances it is clear that there is a serious issue to be determined at the final hearing of the matter. This issue also bears upon the question of urgency. The grounds reflect that the trip switches are contained within sealed domes which are designed to prevent public access. A special designed tool is needed to remove the bolts in order to open the domes. It is alleged on a number of occasions that domes have been left unlocked so that apart from constituting a danger to those who are involved in the actual interference, there is a risk of electrocution of third parties, including children particularly as the domes are situated in a reticulated garden area. The Tribunal accepts in these circumstances that the requirement of urgency is demonstrated.
18 I turn to consider the balance of convenience. It is apparent from the limited admissions made by the respondent that the applicant has good prospects of success at a final hearing, in relation to the issues raised in the interim application. That is relevant to the consideration of the
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- balance of convenience because the criteria are not independent of each other and an interim order will be more readily granted when there is an apparently strong claim, although the balance of convenience may be fairly even. If the prospects of success do not appear to be strong it may be that an interim order should be granted only if the balance of convenience clearly favours the applicant.
19 The issue of an undertaking as to damages is also relevant to the balance of convenience. The provision of an undertaking as to damages will usually prevent injustice at an interlocutory stage because it enables a respondent to recover damages in the event that the applicant should ultimately fail at a final hearing. In this case I was urged by the applicant's counsel not to require the provision of an undertaking as to damages on the basis of the strength of the applicant's case and that the applicant was acting in the interests of all lot owners who would be jointly and severally liable for any claim successfully brought against the strata company as a result of any injury flowing from the conduct of the respondent. These submissions need to be weighed as part of the consideration of the balance of convenience as a whole.
20 The thrust of the respondent's resistance to the application is that it argues that the power cuts caused by the tripping of the switches was a result of power surges, not excessive use of power by the respondent. The respondent contends that its business operations are dependent on it maintaining power supply to its refrigerators and freezers so that if there is a power outage, it is necessary to reconnect power as soon as possible. It is contended that in the past difficulty had been experienced in contacting representatives of either the applicant or its managing agents. While these allegations were not accepted by the applicant, I was informed that arrangements could be put in place to ensure that at all times there were at least two persons who could be contacted by the respondent. Further, that in a case of urgency, the applicant would be prepared to authorise the respondent to engage a licensed electrician to reconnect the power supply, provided proof that a licensed electrician had been used was provided to the applicant.
21 I consider that subject to adequate arrangements being put in place to enable the respondent to ensure that there will not be a delay in reconnection of power supply, that the balance of convenience favours the grant of an interim order, without there being any requirement of an undertaking as to damages. I accept the submissions made on behalf of the applicant as to why there should not be an insistence on an undertaking as to damages.
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Finalisation of form of order
22 Towards the conclusion of the hearing, I indicated to the parties, that subject to a suitable arrangement being worked out between the parties as to how the respondent could ensure that there was not a delay in effecting a reconnection of any disruption of power supply, I considered that the applicant was entitled to the grant of interim relief. I indicated that I would nevertheless reserve my decision, because pursuant to s 104 of the ST Act, it was necessary for the Tribunal to provide written reasons with its order, and to enable the applicant to provide me with a minute of proposed orders, incorporating the arrangements to be made with the respondent concerning reconnection of power. The impression I formed from the discussion of this issue with the parties was that the minute of proposed orders would be provided shortly. As yet, no minute has been provided.
23 In the circumstances, I have prepared my reasons for decision and will cause the matter to be set down for a further hearing, which can be vacated, in the event that a minute of proposed orders is received in a form which I consider to be appropriate. In that event an order will be made in accordance with the minute of proposed orders.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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