THE OWNERS OF 875 WELLINGTON STREET, STRATA PLAN 13599 and KAMIL ALSO KNOWN AS AHMED KAMIL
[2025] WASAT 19
•28 FEBRUARY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: THE OWNERS OF 875 WELLINGTON STREET, STRATA PLAN 13599 and KAMIL ALSO KNOWN AS AHMED KAMIL [2025] WASAT 19
MEMBER: MR E CADE, MEMBER
MS C CONLEY, MEMBER
HEARD: 28 AND 29 FEBRUARY 2024
DELIVERED : 28 FEBRUARY 2025
FILE NO/S: CC 1751 of 2020
BETWEEN: THE OWNERS OF 875 WELLINGTON STREET, STRATA PLAN 13599
Applicant
AND
EDDIE AHMED KAMIL ALSO KNOWN AS AHMED KAMIL
Respondent
FILE NO/S: CC 1756 of 2020
BETWEEN: THE OWNERS OF 875 WELLINGTON STREET, STRATA PLAN 13599
Applicant
AND
EDDIE AHMED KAMIL ALSO KNOWN AS AHMED KAMIL
Respondent
FILE NO/S: CC 1565 of 2022
BETWEEN: DUMO FROM DUBBO PTY LTD
Applicant
AND
THE OWNERS OF 875 WELLINGTON STREET, STRATA PLAN 13599
Respondent
Catchwords:
Strata Titles Act 1985 (WA) - Scheme dispute - Whether Scheme by-law which permits the Strata Company to charge fees for parking on the common property is valid - Whether Strata Company has the power to charge for parking on the common property - Whether a lot owner may charge and retain fees for parking on the common property for their own benefit - Whether installation of CCTV cameras on common property constitutes a structural alteration or the erection of a structure on the common property
Legislation:
Fair Work Act 2009 (Cth), s 326, s 326(1)
Interpretation Act 1984 (WA), s 3(1), s 9, s 46(1), s 46(1a), s 75, s 75(1)
Perth Parking Management (Taxing) Act 1999 (WA)
Perth Parking Management Act 1999 (WA)
Perth Parking Management Regulations 1999 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 16, s 32, s 32(2), s 47, s 105, s 105(9)
Strata Titles (General) Regulations 2019 (WA), reg 83
Strata Titles Act 1985 (WA), (prior to 1 May 2020), s 3B, s 3B(1)(a), s 3B(1)(b), s 3B(2), s 3B(4), s 3C, s 3C(1)(a), s 3C(1)(b), s 3C(2), s 3C(3), s 35(1)(h)(v), s 42, Sch 1, Sch 2
Strata Titles Act 1985 (WA), s 3(1), s 10, s 13(4), s 13(5), s 13(6), s 13(7), s13(7)(b), s 14, s 19, s 20, s 26, s 43, s 43(1), s 43(8), s 44, s 46(b), s 47, s 59(2), s 83, s 103, s 135, s 91, s 91(1), s 91(1)(b), s 91(2), s 91(3), s 93(4), s 103, s 116(1), s 119, s 119(2), s 119(3), s 133, s 135, s 197(1), s 197(1)(a)(i), s 197(1)(a)(ii), s 197(1)(a)(iii), s 197(1)(a)(vi), s 197(2), s 197(4), s 198, s 200, s 200(1), s 200(1)(m), s 200(2), s 200(2)(m), s 200(2)(n), s 209, Sch 2, Sch 5, cl 2(1), cl 4(1), cl 4(2), cl 14, cl 14(1)
Strata Titles Amendment Act 2018 (WA)
Strata Titles General Regulations 1996 (WA), reg 25(1)(a)
Result:
CC 1751 of 2020
Application successful
CC 1756 of 2020
Application successful
CC 1565 of 2022
Application unsuccessful
Category: B
Representation:
CC 1751 of 2020
Counsel:
| Applicant | : | Mr T E Pontre |
| Respondent | : | Mr P G McGowan |
Solicitors:
| Applicant | : | GV Lawyers |
| Respondent | : | Butcher Paull & Calder |
CC 1756 of 2020
Counsel:
| Applicant | : | Mr P Monaco & Mr T E Pontre |
| Respondent | : | Mr P G McGowan |
Solicitors:
| Applicant | : | GV Lawyers |
| Respondent | : | Butcher Paull & Calder |
CC 1565 of 2022
Counsel:
| Applicant | : | Mr P McGowan |
| Respondent | : | Mr T E Pontre |
Solicitors:
| Applicant | : | Butcher Paull & Calder |
| Respondent | : | GV Lawyers |
Case(s) referred to in decision(s):
Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) [2015] FCA 1196
Awareness Publications Pty Ltd and The Owners of Fairway Mews [2011] WASAT 165
Banning and The Owners of 106 Terrace Road Perth - Strata Plan 6289 [2006] WASAT 296
Birchwood Consolidated Pty Ltd (Receivers and Managers Appointed) (In Liquidation) v Kelly [2021] WASC 448
Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 [2024] WASAT 121
Council of Owners-Strata Plan 8969 and Cleaver-Wilkinson [2013] WASAT 196
Duffy and Owners of Warrawong Strata Plan 7976 [2010] WASAT 113
Emmerton and Federal Land Tax Commissioner (1916) 22 CLR 40
Flynne Pty Ltd and the Owners of Strata Plan No 6267 [2014] WASAT 153
Garman Nominees Pty Ltd and Scope Property Group Pty Ltd [2024] WASAT 32
Gemmill Homes Pty Ltd v Sanders [2018] WASC 179
Giabeni Pty Limited and The Owners of 30 Coode Street Mount Lawley Strata Plan 11321 [2024] WASAT 105
Hutchison and Canciullo [2020] WASAT 22
Janeba and The Owners of Bulimba Grove Villa Strata Plan 3266 [2022] WASAT 83
JTA Le Roux Pty Ltd v The Owners of Bunker Bay Resort Strata titles scheme 40074 [2023] WASAT 13
Laffin and Renouf [2016] WASAT 48
Lai v Community Association DP27024 [2016] NSWCATCD 581
Maber & Anor and the Owners of Strata Plan 11391 [2007] WASAT 99
McCall v Martin [2017] QCATA 103
McNab and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 3
Miles v Body Corporate for Solarus Residential Community Titles [2016] QCATA 130
Miles v Gough [2017] QCA 190
Montevento Holdings Pty Ltd v Scaffidi Holdings Pty Ltd [2010] WASC 132
Owners of Strata Plan No 62022 v Sahade [2014] NSWCATCD 28
Owners of Units Plan No 68 v Haughey [2016] ACAT 131
Piazza v Strata Corporation 10147 Inc [2020] SASCFC 27
Pitt v Baxter [2007] WASCA 104
Platt v Ciriello [1998] 2 Qd R 417
Quarry Street Pty Ltd v Minister Administering the Crown Lands Management Act 2016 [2024] NSWCA 107
Raja v Darul-Iman (WA) Incorporated [No 2] [2011] WASCA 251
Re Burton; Ex Parte Rowell & Anor [2006] WASC 277
Saje and Sampson [2023] WASAT 101
Seghezzi and The Owners of 9 The Avenue Crawley Strata Plan 27842 [2013] WASAT 53
Singh and Unitingcare West [2022] WASAT 18
Sisto and The Owners of Glenway Gardens Apartments [2005] WASAT 282
Steele and The Owners of Cocos Beach Bungalows Survey Strata Plan 42074 [2021] WASAT 101
The Owners of 5 & 7 Upton Place, Langford Strata Plan 38498 and Swift [2020] WASAT 165
The Owners of 875 Wellington Street, Strata Plan 13599 and Kamil also known as Ahmed Kamil [2021] WASAT 126
The Owners of 875 Wellington Street, Strata Plan 13599 v Kamil [2022] WASC 305
The Owners of Dolphin Apartments Mandurah Strata Plan 49518 v Poland Superannuation Pty Ltd [2023] WASC 452
The Owners of Habitat 74 Strata Plan 222 v Western Australian Planning Commission and Ors [2004] WASC 23
The Owners of Rosneath Farm Survey Strata Plan 35452 and Rowell & Anor [2007] WASAT 95
The Owners of St John's Court - Rivervale Strata Plan 6052 and Clark [2010] WASAT 126
The Owners of the Linx at Nexus Strata Plan 47739 and Mangles SMSF Pty Ltd [2018] WASAT 101
Tourapark Pty Ltd v Federal Commissioner of Taxation (1982) 149 CLR 176
Wong v Reid [2016] WASC 59
Wybenga and The Owners of Chandler Court Strata Plan 19347 [2020] WASAT 102
Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The Owners of 875 Wellington Street is the Strata Company (Strata Company) of a five-storey residential strata titles scheme established on 8 July 1988 which, as the name indicates, is situated at 875 Wellington Street, Perth (Strata Scheme).
The Strata Scheme comprises 80 privately owned lots (apartments) along with common property, including a lobby and 51 parking bays (Parking Bays).
From since at least 2015, the lots in the Strata Scheme have been rented exclusively to short-stay occupants (guests) to generate income for lot owners.[1]
[1] Combined Agreed Facts, para 4 (facts agreed on 28 February 2024).
At all relevant times, two lot owners in the Strata Scheme have operated competing guest booking businesses from the lobby, and both still do so. These are, firstly, Mr and Mrs Wheeler who operate a business named Inner City Apartments and, secondly, Mr Kamil who operates a business named Perth City Apartments. The remaining lot owners in the Strata Scheme have elected to have their apartments managed by one or the other of these businesses.[2] Mr Kamil owns 30 units and manages five units and the Wheelers own 27 units and manage 18 units.[3]
[2] Combined Agreed Facts, paras 5 - 10 (facts agreed on 28 February 2024).
[3] Combined Agreed Facts, paras 5 - 10 (facts agreed on 28 February 2024).
Mr Kamil has been, and intends to continue, charging guests a fee for parking in the Parking Bays of the Strata Scheme and retaining the fees for himself.[4] Mr and Mrs Wheeler have also charged guests a fee for parking on the Parking Bays and retained the fees for themselves, however, whether they intend to continue to do so is not clear.[5][6]
[4] Combined Agreed Facts, paras 2 - 4 (agreed facts in CC 1751 of 2020).
[5] Combined Agreed Facts, paras 5 - 6 (agreed facts in CC 1751 of 2020).
In or around 2017, Mr Kamil installed seven CCTV cameras on the common property of the Strata Scheme and has refused the Strata Company's requests to remove four of them.[7]
[7] Combined Agreed Facts, paras 9 - 15 (agreed facts in CC 1756 of 2020).
On 18 December 2020 the Strata Company applied to the Tribunal for:
(a)an order under s 200(2)(m) of the Strata Titles Act 1985 (WA) (ST Act) that Mr Kamil immediately remove four CCTV cameras (four CCTV cameras) installed on common property at the Strata Scheme and make good any damage to the common property (CC 1751 of 2020); and
(b)an order under s 200(2)(m) of ST Act that Mr Kamil immediately refrain from charging for and receiving parking fees for vehicles parked on common property at the Strata Scheme (CC 1756 of 2020).
Subsequently, Dumo from Dubbo Pty Ltd (Dumo from Dubbo), a lot owner and a company of which Mr Kamil is a director, challenged the validity of by-law 15 of the by-laws of the Strata Scheme (Scheme by-laws) which the Strata Company says gives it the exclusive power to charge for parking on the common property of the Strata Scheme.
On 26 October 2022, Dumo from Dubbo applied to the Tribunal (in what became proceeding CC 1565 of 2022) for orders under s 200(2)(n)[8] [sic] and 200(1) of the ST Act that:[9]
(a)the Strata Company is taken not to have passed a special resolution on 11 August 2015 in support of a motion to change the Sch 2 by-laws to register by-law 15; or
(b)by-law 15 is invalid and not enforceable.
[8] The correct reference is s 200(2)(n) of the ST Act. We will hereafter refer to the correct reference.
[9] Substituted Grounds of Application lodged 5 May 2023.
For the reasons set out below, we have decided that:
(a)the commencement of proceedings CC 1751 of 2020 and CC 1756 of 2020 is authorised by the Council of Owners;
(b)by-law 15 of the Scheme by-laws is a valid Scheme by-law and, in conjunction with s 91(1)(b) of the ST Act, gives the Strata Company exclusive power (subject to conditions) to charge for parking on the common property for the benefit of all lot owners. However, due to the Strata Company not having passed a resolution adopting an administration policy under the by-law, the by-law is inoperative;
(c)Mr Kamil is not permitted to charge for and retain parking fees for vehicles parked on the common property since this is a contravention of s 83 and s 91 of the ST Act and by-law 1(2)(a) of the Scheme by-laws;
(d)Mr Kamil is to immediately refrain from charging for and retaining parking fees for vehicles parked on the common property;
(e)the four CCTV cameras Mr Kamil placed on common property and which he has refused to remove are unauthorised alterations to a structure on the common property;
(f)Mr Kamil's placement of the four CCTV cameras on the common property is a contravention of s 91(1)(b) of the ST Act; and
(g)Mr Kamil must remove the four CCTV cameras, the magnetic plates and securing screws and make good any damage to the common property.
Terminology
The ST Act was extensively amended by the Strata Titles Amendment Act 2018 (WA) (ST Amendment Act) which came into operation on 1 May 2020.
In order to resolve these proceedings, we will in these reasons refer to both the provisions of the ST Act is they were before 1 May 2020 and also as they are now.
Consequently, in order to avoid confusion, the provisions of the ST Act as they were before 1 May 2020 will be referred to in these reasons as the Prior ST Act.
Legislative Framework
Dispute resolution
Section 197(1) of the ST Act provides that a scheme dispute includes, relevantly for present purposes:
(a)a dispute between scheme participants about —
(i)the scheme documents, including the validity of scheme by-laws; or
…
(iii)an alleged contravention of this Act (other than an offence);
…
(vi)any other matter arising under this Act or the scheme by-laws[.]
The scheme disputes in these proceedings concern:
(a)Mr Kamil's conduct in charging and retaining fees for parking on the common property;
(b)Mr Kamil's installation of four CCTV cameras on common property in or around 2017 and his refusal to remove them; and
(c)by-law 15 of the Scheme by-laws, which was purportedly passed by resolution of the Strata Company on 11 August 2015.
Schedule 5, cl 14(1) of the ST Act provides that '[a] scheme dispute may involve an event that occurred, or a matter that arose, before commencement day'.[10]
[10] Commencement day being 1 May 2020.
Section 199 of the ST Act relevantly provides:
(1)In a proceeding under this Act, the Tribunal may make a declaration concerning a matter in the proceeding instead of any order the Tribunal could make, or in addition to any order the Tribunal makes, in the proceeding.
(2)The Tribunal's power to make a declaration is exercisable only by a legally qualified member (or by the Tribunal constituted of a legally qualified member and other members).
(3)Without limitation, a declaration may be made that —
(a)a specified person has or has not contravened a specified provision of this Act, the scheme by-laws or a strata lease; or
…
(c)a specified scheme by-law is or is not invalid; or
(d)a specified decision or resolution of a strata company is or is not invalid;
…
The principles relating to the exercise of the Tribunal's discretion to make a declaration under s 199 of the ST Act are succinctly summarised by the Tribunal in Clay and The Owners of Carinya Court Rockingham Strata Plan 25819 [2024] WASAT 121 (Clay) at [65] - [67] as follows:
65… the power of the Tribunal to make a declaration under s 199(3) of the ST Act is a statutory discretionary power.
66In Van Rensburg and Owners of Ocean Marina Pointe Strata Plan 45077 [2023] WASAT 94, I considered the principles to be applied in exercising the Tribunal's discretion to grant declaratory relief. At [49] in that decision, I referred to the rules for granting declaratory relief as summarised at [65] in Adder Holdings Pty Ltd and The Owners of Harbour Pines Strata Plan 23297 [2022] WASAT 120 (Adder Holdings) as espoused by Lockhard J in Aussie Airlines Pty Ltd v Australian Airlines Ltd and Others (1996) 68 FCR 406 at 415. Those rules may be summarised as follows:
•The proceeding must involve the determination of a question that is not abstract or hypothetical.
•There must be a real question involved.
•The declaratory relief must be directed to the determination of legal controversies … The answer to that question must produce some real consequences for the parties.
•The applicant for declaratory relief will not have sufficient status if relief is 'claimed in relation to circumstances that [have] not occurred and might never happen' or if the Tribunal's declaration will produce no foreseeable consequences to the parties.
67Most recently, in Giabeni, I again considered the principles to be applied in exercising the Tribunal's discretion to grant declaratory relief. At [43] to [46] of that decision, I referred to Tax Practitioners Board v van Dyke [2024] FCA 899 and noted the following other factors relevant to the exercise of the discretion by the Tribunal:
•whether the declaration will have any utility;
•whether the proceeding involves a matter of public interest; and
•whether the circumstances call for the marking of the Tribunal's disapproval of the contravening conduct.
Section 200 of the ST Act relevantly provides that:
(1)In a proceeding under this Act, the Tribunal may make any order it considers appropriate to resolve the dispute or proceeding.
(2)Without limitation, the orders that may be made by the Tribunal on an application under this Act include the following —
…
(m)an order requiring a person to take specified action or to refrain from taking specified action to remedy a contravention or prevent further contraventions of this Act, scheme by-laws or a strata management contract;
(n)an order that the strata company is to be taken to have passed or not to have passed a specified resolution required under this Act or the scheme by-laws as an ordinary resolution, special resolution, resolution without dissent or unanimous resolution;
…
In Clay at [60] - [63] the Tribunal set out the principles relating to the Tribunal's discretion to make an order under s 200 of the ST Act as follows:
60The power of the Tribunal to make orders to resolve a scheme dispute or the proceeding under s 200(1) of the ST Act is a statutory discretionary power.
61In Efficient Building Team Pty Ltd and Perth Recruitment Services Pty Ltd [2024] WASAT 25 at [34] to [43] I explained the Tribunal's statutory discretionary power as follows:
34The term 'discretion' was explained in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [200] HCA 47; (2000) 203 CLR 194 at [19] as follows:
'Discretion' … refers to a decision-making process in which "no one [consideration] and no combination of [considerations] is necessarily determinative of the result". Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable … [or] it may be quite narrow[.]
35…
36… However, that is not to say that the statutory power is not without limitation. As stated by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18 (Li) at [23] every statutory discretion, however broad, is constrained by law.
37Legal reasonableness provides the boundaries within which a decision-maker such as the Tribunal has a genuine free discretion: Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505 and Li at [23]. To determine the boundaries of the statutory discretionary power, regard must be had to the scope, subject matter and purpose of the statutory scheme that creates and confers on the Tribunal a discretion to make an order: Li at [67].
38The scope and purpose of the ST Act provides limits on the exercise of the statutory power by the Tribunal. By its long title, the ST Act is to provide for, among other related purposes, for the subdivision of land by strata titles schemes, the creation of strata titles and the governance and operation of strata titles schemes.
…
41Importantly, in exercising its statutory powers, the Tribunal must do so reasonably: Li at [23]. The same was said in the earlier decision of Kruger & Ors v The Commonwealth of Australia (1997) 190 CLR 1 where Brennan CJ stated at [36]:
[W]hen a discretionary power is statutorily confined on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised[.]
42In other words, the statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably …
43… [T]he Tribunal in making its decision as to whether or not to exercise its statutory discretionary power to make an order, must ultimately take all considerations into account.
Before making an order under s 200(2)(m) of the ST Act, the Tribunal 'must consider the conduct complained of is a contravention'[11] of, inter alia, 'this Act' or Scheme by-laws.
[11] The Owners of 875 Wellington Street Strata Plan 13599 v Kamil [2022] WASC 305 (Kamil) [73].
Under the Interpretation Act 1984 (WA) (Interpretation Act), a reference in a written law to a written law is to be construed so as to include a reference to any subsidiary legislation made under that written law.[12] Accordingly, the term 'this Act' in s 197(1)(a)(iii) and s 200(2)(m) of the ST Act includes a reference to the Strata Titles (General) Regulations 2019 (WA) (ST Regulations).
[12] Interpretation Act, s 46(1) and (1a).
The term 'contravention' is not defined in the ST Act. The term 'contravention' is defined in the Macquarie Dictionary On-line edition as 'noun the act of contravening; action counter to something; violation.' Further, the term 'contravene' is defined in the Macquarie Dictionary On-line edition as:
verb (t) (contravened, contravening)
1.to come or be in conflict with; go or act counter to; oppose.
2.to violate, infringe, or transgress: to contravene the law.
The term 'contravene' is defined in the Interpretation Act as follows:
… in relation to any requirement or condition prescribed in a written law or in any grant, permit, lease, licence, or other authority under a written law, includes a failure to comply with that requirement or condition;
In our view, the definition of 'contravene' in the Interpretation Act is also of assistance in providing a definition of the word 'contravention' in the ST Act. This is for two reasons. First, because there is no definition to the contrary in the ST Act and there is nothing in the intent and object or in the subject or context of the ST Act which is inconsistent with such application.[13] Second, because where a word or phrase is defined in a written law, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.[14]
[13] Interpretation Act, s 3(1).
[14] Interpretation Act, s 9.
Further, given that the definition of scheme dispute in s 197(1)(a)(iii) includes 'an alleged contravention of the [ST Act] (other than an offence)', and the connection between s 197(1)(a)(ii) and s 200(1)(m), a contravention of the ST Act for the purposes of s 200(1)(m) of the ST Act does not include an offence under the ST Act or the ST Regulations.
Accordingly, in our view, a contravention of 'this Act' for the purposes of s 197(1)(a)(iii) and s 200(1)(m) of the ST Act includes a violation, infringement or transgression of, a failure to comply with a requirement or condition of, or to conflict with or to act counter to, the ST Act or the ST Regulations, other than an offence contrary to the ST Act or the ST Regulations.
We consider that it is appropriate to apply the principles set out in Clay to determine whether or not it is appropriate to make an order or orders under s 200 of the ST Act or a declaration or declarations under s 199 of the ST Act.
Both members of the Tribunal hearing this matter are legally qualified members. Therefore, it is open to the Tribunal to make a declaration or declarations in the proceedings.
Issues for Determination
Preliminary Issue
The preliminary issue is whether proceedings CC 1751 of 2020 and CC 1756 of 2020 were authorised by the Strata Company. This issue is considered below at [41] - [54].
Primary Issues
The primary issues for determination by the Tribunal are:
Issue 1: Whether the Tribunal has jurisdiction to determine each application;
Issue 2: Whether by-law 1(2) of Sch 1 of the Prior ST Act is a Scheme by-law, and whether it is a governance or conduct by-law under the ST Act;
Issue 3: Whether by-law 15 is a valid Scheme by-law, and whether it is a governance or conduct by-law under the ST Act;
Issue 4: If by-law 15 is invalid, what relief under the ST Act, if any, should be granted to Dumo from Dubbo;
Issue 5: Whether Mr Kamil is in contravention of the ST Act, bylaw 1 or by-law 15 of the Scheme by-laws by charging and retaining fees received by him from guests who park on common property;
Issue 6: Whether Mr Kamil's placement of the four CCTV cameras on common property constitutes an alteration of any structure on common property;
Issue 7: Whether Mr Kamil's placement of the four CCTV cameras on common property constitutes an erection of a structure on common property;
Issue 8: Whether, so as not to be in contravention of either the ST Act and/or the by-laws, Mr Kamil's placement of the four CCTV cameras on the common property requires authorisation by a resolution without dissent of the Strata Company;
Issue 9: Whether Mr Kamil's placement of the four CCTV cameras on common property is in contravention of the ST Act;
Issue 10: Whether the Strata Company has acted contrary to s 119 of the ST Act;
Issue 11: If Mr Kamil is in breach of the ST Act and/or the Scheme by-laws by charging and retaining fees from guests who park on common property, what relief, if any should be granted to the Strata Company; and
Issue 12: If the placement of the four CCTV cameras constitutes an alteration, or erection, of any structure on the common property and was not authorised by a resolution without dissent, what relief, if any, should be granted to the Strata Company.
These issues are considered below at [55] - [324].
Proceedings in the Tribunal
The final hearings in proceedings CC 1751 of 2020, CC 1756 of 2020 and CC 1565 of 2022 took place on 28 and 29 February 2024 (Hearing). Each party was represented by counsel at the Hearing. Mr Kamil was the only person to give evidence at the Hearing.
While each of these three proceedings is a separate proceeding, by orders of the Tribunal dated 7 December 2023, the three proceedings are to be heard and determined together and evidence in one proceeding is to be evidence in each other proceeding.
This Tribunal has proceeded on the basis that, pursuant to s 32 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and subject to the principles of natural justice, it may consider in these final hearings both the materials that were before the original decision-maker as well as the additional materials that the parties have put before this Tribunal as a consequence of the orders of this Tribunal made on 7 December 2023.
For the avoidance of doubt, as this was an issue raised by a party, the Tribunal is of the view for the reasons given that this Tribunal may consider relevant material that has come into existence since any of the applications which initiated the proceeding were lodged with the Tribunal.
At the commencement of the final hearings on 28 February 2024 each party tendered the bundle of documents on which it proposed to rely on in the hearings. In accordance with the Tribunal's usual practice these bundles were, subject to objection, admitted as evidence in the proceeding as Exhibit 1 (the parties combined bundle in CC 1751 of 2020 and CC 1756 of 2020) and Exhibit 2 (the parties combined bundle in CC 1565 of 2022). Exhibit 3 is a licence agreement and Exhibit 4 is the parties' agreed facts.
Opening submissions were provided to the Tribunal by the parties. At the conclusion of the Hearing, each of the parties elected to give written closing submissions to the Tribunal, and the last of these submissions was lodged with the Tribunal on 15 May 2024. Further written closing submissions on some additional issues and a further statement of agreed facts (Combined Agreed Facts) were provided to the Tribunal by the parties and the last of these was lodged with the Tribunal on 11 November 2024.
For convenience, and because this is in accordance with how the parties dealt with this matter, we will refer to submissions made on behalf of Mr Kamil and Dumo from Dubbo as submissions made by Mr Kamil.
On 11 November 2024, the Tribunal reserved its decision in each of the proceedings.
Examination of the Issues
The Preliminary Issue
It is not in dispute in any of the proceedings and we find that:
(a)on 12 November 2020, the Council of Owners passed a resolution that its solicitors be directed to issue notices to Mr Kamil for breaches of the Scheme by-laws;[15]
(b)on 18 December 2020, the solicitors for the Council of Owners lodged the applications which became proceedings CC 1751 of 2020 and CC 1756 of 2020; and
(c)on 12 February 2024, the Council of Owners passed the following resolution:[16]
The Council of Owners resolved to approve the SAT Hearings and engagement of GV Lawyers on CC 1751 of 2022 [sic] (Parking), CC 1756 of 2022 [sic] (Cameras) and CC 1565 of 2022 (Mr Kamil's attack on By Law 15).
[15] Minutes of Meeting of Council of Owners held on 12 November 2020 (Exhibit 1 at pages 73 - 74 of the Applicant's Bundle).
[16] Minutes of Meeting of Council of Owners held on 12 February 2024 (Exhibit 1 at page 198 of the Applicant's Bundle).
Mr Kamil contends that at the time proceedings CC 1751 of 2020 and CC 1756 of 2020 were commenced in the Tribunal the Council of Owners had not authorised by resolution the commencement of either proceeding. Mr Kamil says the consequence is that the Strata Company is not properly a party to these proceedings and so the proceedings ought to be struck out.
This is because, Mr Kamil contends, the effect of s 14, s 103 and s 135 of the ST Act is to require that an application under the ST Act is only able to be made after authorisation by a resolution of the Council of Owners. Mr Kamil refers to Montevento Holdings Pty Ltd v Scaffidi Holdings Pty Ltd [2010] WASC 132 at [21] (Montevento). He also contends that by-law 4 in Sch 1 of the Scheme by-laws provides that such a resolution may only be passed at a meeting of the Council of Owners at which a competent quorum is present and is also subject to any restriction imposed or direction given at a general meeting.
By-law 4(1) in Sch 1 of the Scheme by-laws in the Prior ST Act (by-law 4(1)) provides that:[17]
The powers and duties of the strata company must, subject to any restriction imposed or direction given at a general meeting, be exercised and performed by the council of the Strata Company and a meeting of the council at which a quorum is present is competent to exercise all or any of the authorities, functions or powers of the council.[18]
[17] For reasons we give at paragraphs [67] to [76] of these reasons we find that the Scheme by-laws comprise the by-laws in Sch 1 and Sch 2 of the Prior ST Act, supplemented by by-laws 15, 16 and 17.
[18] By-law 4(1) in Sch 1 of the Prior ST Act is in identical terms to by-law 4(1) in Sch 1 of the ST Act.
The Strata Company contends that the proceedings were retrospectively authorised by the resolution passed by the Council of Owners on 12 February 2024.
The issue in dispute between the parties, therefore, is whether the Council of Owner's resolution passed after the lodgement of the applications is sufficient to authorise proceedings CC 1751 of 2020 and CC 1756 of 2020.
Consideration of the preliminary issue
A Strata Company is comprised of the owners for the time being of the lots in the strata scheme who are the members of the Strata Company and the governing body of a Strata Company is the Council of Owners.[19]
[19] ST Act, s 14.
Subject to the ST Act, and to any restriction imposed or direction given by ordinary resolution, the functions of a Strata Company are to be exercised and performed by the council of the Strata Company.[20]
[20] ST Act, s 135.
It is not in dispute that the Strata Company has the power to commence proceedings under the ST Act relating to a scheme dispute over common property.[21]
[21] See s 91(3) and s 103 of the ST Act; McNab and Pyramid Constructions (WA) Pty Ltd [2017] WASAT 3.
However, proceedings instituted in the Tribunal in the name of a Strata Company must be appropriately authorised by the Strata Company. For example, they may be authorised by the making of a resolution of the Council of Owners, by the making of a resolution at a general meeting, or by the Tribunal under s 198 of the ST Act (in circumstances where a Strata Company has unreasonably refused to make an application to the Tribunal under the ST Act).
If a proceeding has been instituted in the Tribunal in the name of a Strata Company without the appropriate authorisation of the Strata Company, then an application may be made to dismiss or strike out the proceeding as an abuse of process under s 47 of the SAT Act, or the Tribunal may do so on its own initiative under the same section.
However, it is our view that a Council of Owners may by resolution retrospectively authorise and so adopt proceedings which were commenced without authorisation, provided this is done before the Tribunal determines the application.
We are satisfied the resolution passed on 12 February 2024 does authorise and adopt the proceedings CC 1751 of 2020 and CC 1756 of 2020. This is for the following reasons:
(a)the minutes of the Council of Owners dated 12 February 2024, which are not challenged by Mr Kamil, states that a competent quorum was present and the resolution passed;
(b)section 9 of the SAT Act provides that the objectives of the Tribunal are to achieve the resolution of questions, complaints and disputes fairly and according to the substantial merits of the case, to act with as little formality and technicality as is practicable, and to minimise the costs to the parties. While the Tribunal notes that two of the proceeding numbers were incorrectly stated to be proceedings initiated in 2022 rather than in 2020, the proceedings are correctly described and we find that the resolution clearly intended to authorise and adopt proceedings CC 1751 of 2020 and CC 1756 of 2020. Consequently, to strike out an application because it referred to the wrong year in the matter number would place formality and technicality above the substantial merits of the application, would waste costs, and so would be inconsistent with the statutory objectives of the Tribunal;
(c)the Montevento principles are distinguishable, as in those proceedings there was no prospect the corporation would pass a resolution authorising the commencement of the proceedings, and so no prospect that it could adopt the proceedings. Indeed, the reasons imply that had the corporation been capable of passing a resolution authorising the commencement of the proceedings and if it had in fact passed such a resolution, then the proceedings would not have been struck out;
(d)the ST Act does not prohibit a Council of Owners from retrospectively adopting a proceeding; and
(e)because they are not a nullity, the retrospective authorisation of proceedings is lawful. For example, the Court of Appeal in Raja v Darul-Iman (WA) Incorporated [No 2] [2011] WASCA 251 at [33], approved the retrospective authorisation of a proceeding under the Associations Incorporation Act 1987 (WA). The Court of Appeal said:
33.… More than six years have elapsed since the question of whether the Omar Group had authority to instruct the lawyers in 2004 was first raised. Resolution of that question could never, however, necessarily be determinative of whether the respondent could proceed with the action. That is because an action, though brought without authority, is not a nullity in the sense that it is void ab initio without the possibility of subsequent ratification. Ratification, once effective, relates back to the date of the institution of the action[.] (Citations omitted)
Accordingly, we find that the resolution passed by the Council of Owners on 12 February 2024 authorised and so adopted or ratified proceedings CC 1751 of 2020 and CC 1756 of 2020. Therefore, we are satisfied these proceedings are not to be struck out for lack of authorisation.
Issue 1: Whether the Tribunal has jurisdiction to determine each application
The jurisdiction of the Tribunal is not challenged by any of the parties in any of the proceedings currently before us. Nonetheless, we must satisfy ourselves the Tribunal has jurisdiction under Pt 13 of the ST Act to determine the scheme disputes which are the subject of each of the proceedings.
Under s 209 of the ST Act '[u]nless otherwise provided in this Act, a proceeding before the Tribunal under this Act comes within the Tribunal's original jurisdiction'.
Pursuant to s 16 of the SAT Act, this Tribunal in exercising its original jurisdiction 'is to deal with [these] matter[s] in accordance with this Act and the enabling Act', which in these proceedings is the ST Act.
As noted above, a scheme dispute may involve an event that occurred or a matter that arose before 1 May 2020.[22]
[22] ST Act, Sch 5, cl 14.
Proceedings CC 1751 of 2020 and CC 1756 of 2020 are before this Tribunal for final hearing in accordance with the orders of His Honour Allanson J in The Owners of 875 Wellington Street, Strata Plan 13599 v Kamil [2022] WASC 305 (Kamil).[23]
[23] Proceedings CC 1751 of 2020 and CC 1756 of 2020 were before Allanson J by way of an appeal pursuant to s 105 of the SAT Act in respect of final orders in those proceeding made by a single member of this Tribunal dated 15 September 2021. The appeal was partially allowed and on 14 September 2022 his Honour, pursuant to s 105(9) of the SAT Act, made orders to return the proceeding to this Tribunal for determination.
As explained by His Honour Allanson J, the disputes in proceeding CC 1751 of 2020 and CC 1756 of 2020 are whether Mr Kamil in charging for and receiving fees for parking on common property and in installing four CCTV cameras on the common property is in contravention of the Scheme by-laws and/or the ST Act, and if so, whether the Tribunal should make orders to remedy the contravention or prevent further contravention.[24]
[24] Kamil [3] - [5].
Proceedings CC 1751 of 2020 and CC 1756 of 2020 involve a request for orders of the Tribunal, under s 197(1)(a)(iii) and (vi), s 197(2) and s 200(2)(m) of the ST Act, to resolve a scheme dispute between scheme participants (namely, the Strata Company and Mr Kamil, a member of the Strata Company since he is a lot owner). Each of these proceedings is therefore a proceeding under the ST Act within the original jurisdiction of this Tribunal.
The issue in dispute in proceeding CC 1565 of 2022 is whether bylaw 15 is a valid by-law. By-law 15 was considered and voted on at a general meeting held on 11 August 2015. As we have noted at paragraph [16], under cl 14 of Sch 5 of the ST Act a scheme dispute may involve an event that occurred on a date before the commencement date.
Proceeding CC 1565 of 2022 involves a request for orders of the Tribunal to resolve a scheme dispute between scheme participants (namely, the Strata Company and Dumo from Dubbo, a member of the Strata Company since that company is a lot owner), under s 197(1)(a)(i), s 197(2) and s 200(2)(n) of the ST Act. Proceeding CC 1565 of 2022 is therefore also a proceeding under the ST Act within the original jurisdiction of this Tribunal.
We find that each of the applicants and respondents in each of the proceedings are 'scheme participants' under s 197(2) of the ST Act, the Strata Company because it is stated to be a scheme participant in s 197(2) of the ST Act and the other parties because they are lot owners.
We are therefore satisfied that the Tribunal has jurisdiction under Pt 13 of the ST Act to resolve the scheme disputes which are the subject of each of the proceedings.
When exercising this jurisdiction, we are mindful that:
(a)the Tribunal's objectives set out in s 9 of the SAT Act require us to achieve the resolution of matters according to the substantial merits of the case with as little formality and technicality as possible; and
(b)pursuant to s 32(2) of the SAT Act:
The Evidence Act 1906 (WA) does not apply to the Tribunal's proceedings and the Tribunal —
(a)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms[.]
and
(c)we are charged under s 197(1) and (4) of the ST Act in these proceedings to achieve the 'resolution' of the scheme disputes between the parties.
Issue 2: Whether by-law 1(2) of Sch 1 of the Prior ST Act is a by-law of the Strata Scheme, and whether it is a governance or conduct Scheme by-law under the ST Act
The parties have approached these proceedings on the basis that the governance by-laws in Sch 1 and conduct by-laws in Sch 2 of the ST Act, supplemented by by-laws 15, 16 and 17, are the Scheme by-laws.[25]
[25] This is also the approach taken by Allanson J in Kamil and by the Tribunal in the earlier (differently constituted) proceedings. However, it appears neither Allanson J nor the earlier Tribunal had the benefit of submissions as to cl 4(1) of Sch 5 of the ST Act.
However, we do not agree. Our view is that the Scheme by-laws are the by-laws in Sch 1 and Sch 2 of the Prior ST Act, supplemented by by-laws 15, 16 and 17. [26][27] This is for the following reasons.
[26] The deemed governance by-laws are in Sch 1 of the ST Act.
First, under s 42 of the Prior ST Act, the by-laws set out in Schs 1 and 2 were deemed to be by-laws of a Strata Company and could be amended, repealed or added to by the Strata Company in accordance with that section.
Second, by-laws of a Strata Company as in force immediately before the commencement day of the ST Amendment Act continue in force as Scheme by-laws as if they had been made as governance by-laws, or as conduct by-laws, under the ST Act[28] provided that they were not repealed by operation of the ST Act.
[28] ST Act, Sch 5, cl 4(1) and cl 4(2).
Third, the documents provided to us by the parties do not include any resolution by the Strata Company that repeals, amends or replaces any of the by-laws deemed to be the Scheme by-laws under s 42 of the Prior ST Act.
However, despite this, in our view it makes no material difference in these reasons whether the Scheme by-laws incorporate the by-laws within Schs 1 and 2 of the Prior ST Act supplemented by by-laws 15, 16 and 17 or whether they incorporate supplemented governance and conduct by-laws within the ST Act. This is because the relevant by-laws in these proceedings are equivalent in substance, if they are not identical. In this case, the relevant equivalent by-law to by-law 1(2) of Sch 1 of the Prior ST Act is by-law 2 of the conduct by-laws of the ST Act.
By-law 1(2) of Sch 1 of the Prior ST Act (by-law 1(2)) is as follows:
A proprietor, occupier or other resident of a lot shall —
(a)use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment thereof by other proprietors, occupiers or residents, or of their visitors; and
(b)not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to any occupier of another lot (whether a proprietor or not) or the family of such an occupier; and
(c)take all reasonable steps to ensure that his visitors do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor, occupier or other resident of another lot or of any person lawfully using common property; and
(d)take all reasonable steps to ensure that his visitors comply with the by-laws of the Strata Company relating to the parking of motor vehicles.
By-law 1(2) was not repealed by the operation of Sch 5, cl 4(2). Further, the only amendment made to by-law 1 was the addition of a new subparagraph (c) to cl 1(1a).
Accordingly, we find that the combined effect of s 42 of the Prior ST Act and cl 4(1) and (2) of Sch 5 of the ST Act is that by-law 1(2) is a by-law of the Strata Company under the ST Act.
We also find that under cl 4(1) of Sch 5 of the ST Act, the classification into which by-law 1(2) would fall is as a conduct by-law. This is because under s 3(1) of the ST Act, by-law 1(2) deals with the 'management, control, use or enjoyment of … common property in the scheme'. Consequently, under s 44(2)(b) of the ST Act, a by-law that would amend or repeal by-law 1(2) must be passed by a special resolution.
Issue 3: Whether by-law 15 is a valid Scheme by-law, and whether it is a governance or conduct Scheme by-law under the ST Act
There are a number of sub-issues relating to the validity of by-law 15:
(a)whether by-law 15 was properly passed;
(b)whether by-law 15 is inconsistent with s 43(1) of the ST Act and hence invalid;
(c)whether by-law 15, if properly passed and consistent with s 43(1) of the ST Act is invalid or inoperative because there is no administration policy in existence;
(d)whether the Strata Company is able to charge for parking on the common property without a Scheme by-law; and
(e)whether Scheme by-law 15 is a governance or conduct by-law under the ST Act
At the outset, we make a number of observations about the Perth Parking Management Act 1999 (WA) (PPM Act):
(a)the PPM Act makes provision for the management of parking in certain parts of the metropolitan area, namely the 'Perth parking management area' which is an area of land set out in a map in the Perth Parking Management Regulations 1999 (WA) (PPM Regulations);[29]
(b)under the PPM Act, the owner of land in the Perth parking management area must not permit a vehicle to be parked on the land or in or on the building unless, amongst other requirements, the owner has a car parking bay licence that permits the vehicle to be parked there;[30]
(c)if the land on which vehicles are permitted to park is part or all of the common property or a lot in a strata titles scheme within the meaning of the ST Act, then the Strata Company for that scheme is the owner of the land for the purposes of the PPM Act;[31]
(d)to the extent that a licence fee referred to in the PPM Act is a tax, the Perth Parking Management (Taxing) Act 1999 (WA) (PPMT Act) imposes the fee;[32] and
(e)in Singh at [127] the Tribunal said that:[33]
The ability of a Strata Company to apply for, be issued with, and seek to vary, a car parking bay licence under the PPM Act is consistent with the duty of a Strata Company under s 91(1)(b) of the ST Act to 'control and manage the common property for the benefit of all the owners of lots'.
[29] PPM Act, s 6; PPM Regulations, reg 4 and Sch 1.
[30] PPM Act, s 7.
[31] Paragraph (a) of the definition of 'owner' in the PPM Act, s 4.
[32] PPMT Act, s 3.
[33] Singh and Unitingcare West [2022] WASAT 18 (Singh).
Based on the documentary evidence before the Tribunal, which is not in dispute, we make the following findings of fact:
(a)in early 2015, the City of Perth introduced a parking levy on properties in the central business district. As the Strata Scheme is in the central business district and it had the Parking Bays, it became liable to pay this levy under the PPM Act.[34] In 2015 the Council of Owners estimated the levy to be $66,318 per annum;[35]
[34] Witness Statement of Geoffrey Davis (Exhibit 2 at page 18 of the Respondent's Bundle); Letter from Department of Transport to strata manager (Exhibit 1 at pages 19 - 20 of the Respondent's Bundle) and Minutes of the AGM held on 11 August 2015 (Exhibit 2 at Exhibit 2 at page 6 of the Respondent's Bundle and page 12 of the Applicant's Bundle).
[35] Minutes of the AGM held on 11 August 2015 (Exhibit 2 at page 6 of the Respondent's Bundle and page 12 of the Applicant's Bundle).
(b)when the parking levy was proposed it was known by the Council of Owners that the two short stay businesses charged those of their guests who parked on the Parking Bays a fee at a rate set at each businesses' discretion. It was also understood that these parking fees were retained by the businesses as income;[36]
[36] Email to Secure parking from Strata Manager (Exhibit 1 at page 21 of the Respondent's Bundle); Witness statement of Mr Kamil (Exhibit 1 at pages 114 - 116).
(c)the Council of Owners resolved to propose to the Strata Company at its next annual general meeting it pass a special resolution to amend the Scheme by-laws so as to permit the Strata Company to charge a fee to those guests who used the Parking Bays, with the revenue so generated to be used to off-set the cost of the parking levy;[37]
[37] AGM Minutes, 11 August 2015, item 12.
(d)a by-law was drafted by Mr Davis, then the Treasurer of the Council of Owners;[38]
[38] Witness Statement of Geoffrey Davis (Exhibit 2 at page 18 of the Respondent's Bundle).
(e)the resolution proposed in the Notice of Annual General Meeting dated 24 July 2015 is:
Parking fees
15.The Strata Company has the power to charge a fee for parking vehicle on the common property, provided that:
a)the following persons are exempt from paying parking fees:
a.a proprietor
b.a proprietor's lessee, unless the lessee is an occupier
c.employees and contractors of a proprietor and proprietor's lessee where the building is the usual place of work for the employee and where the contractor has been engaged to carry out work
d.any other persons declared exempt by the strata council
the persons exempt from paying the parking fees shall only claim the exemption when they are parking at the building for the purpose of attending to matters to do with their association with the building;
b)the administration policies for the parking fees are determined and carried out by the strata council;
c)the parking fee is not greater than ten dollars (including GST) per 24 hour period and that the parking fee may be increased by not more than the annual consumer price index for Perth (Transport) Group as determined by the Australian Bureau of Statistics as at 30 June each year.[39]
[39] Witness statement of Heidi Wheeler (Exhibit 2 at page 24 of the Respondent's Bundle).
(f)on 11 August 2015, the Annual General Meeting (AGM) of the Strata Company was held. The minutes of the meeting record that:
A total of 80 lot Proprietors are eligible to participate in the meeting. A quorum consists of 40 (50% of financial Proprietors) and as 54 lot Proprietors are present or represented by Proxy, the Chairperson advises that a quorum is present and the meeting can proceed to consider the business on the 6.15pm.[40]
[40] Minutes of AGM held on 11 August 2015 (Exhibit 2 at pages 1 - 2 of the Respondent's Bundle and Exhibit 2 at pages 7 - 8 of the Applicant's Bundle).
(g)at the AGM, the Strata Company considered, voted and passed a special resolution to amend the Scheme by-laws to include a by-law in the following terms:[41]
[41] Minutes of AGM held on 11 August 2015 (Exhibit 2 at page 7 of the Respondent's Bundle and Exhibit 2 at page 13 of the Applicant's Bundle).
Parking fees
15.The Strata Company has the power to charge a fee for parking a vehicle on the common property, provided that:
a.The following persons are exempt from paying parking fees:
i.a proprietor;
ii.a proprietor's lessee unless the lessee is an occupier;
iii.employees and contractors of a proprietor and a proprietor's lessee where the building is the usual place of work for the employee and where the contractor has been engaged to carry out work;
iv.any other persons declared exempt by the strata council.
b.the persons exempt from paying the parking fees shall only claim the exemption when they are parking at the building for the purpose of attending to matters to do with their association with the building; and
c.the administration policies for the parking fees are determined and carried out by the strata council.
(h)the minutes of the AGM record that the motion was moved by Grant Regan (the owner of lot 2) and was seconded by Mr Kamil, and that the 'Motion carried unanimously, that being greater than 75% of the voters present';[42]
[42] Minutes of AGM held on 11 August 2015 (Exhibit 2 at page 13 of the Applicant's Bundle); Witness statement of Geoffrey David (Exhibit 2 at page 18 of the Respondent's Bundle).
(i)on 30 October 2015, the strata manager for the Strata Scheme lodged a Form 21 Notification of Change of by-Laws pursuant to s 42 of the Prior ST Act which notified the Registrar of Titles that the proposed by-law 15 was added to the Sch 2 bylaws. The notice also stated this was by special resolution passed on 11 August 2015 which became unconditional on 14 September 2015. By-law 15 was then noted on Landgate records as being incorporated into the Strata Scheme's Sch 2 by-laws effective 30 October 2015;[43]
[43] Landgate notification documents (Exhibit 1 at pages 13 - 45 of the Applicant's Bundle); Witness statement of Mr Kamil (Exhibit 2 at page 4 of the Applicant's Bundle).
(j)the minutes of the 11 August 2015 AGM were accepted at the 14 December 2016 AGM by a motion moved by Mr Kamil;[44]
[44] Minutes of the AGM held on 14 December 2016 (Exhibit 2 at page 11 of the Respondent's Bundle). Witness statement of Geoffrey David (Exhibit 2 at page 19 of the Respondent's Bundle).
(k)in around 2019 the Council of Owners contracted with a parking management company (the arrangement). The arrangement between these parties was that the parking management company was granted the right to install barriers and parking meters on the common property of the Strata Scheme, along with the right to charge a parking fee to non-exempt users of the Strata Scheme's Parking Bays. The parties also agreed to share the parking fees paid by non-exempt persons;[45]
[45] Minute of Meeting of Council of Owners held on 31 October 2019 and 12 December 2019 (Exhibit 1 at pages 66 and 72 of the Applicant's Bundle) and Secure Parking Proposal for 875 Wellington Street (Exhibit 1 at pages 88 – 99 of the Applicant’s Bundle).
(l)for reasons that are not necessary to deal with here except to note that they included a dispute as to whether the parking management company had the exclusive right to demand and retain fees for non-exempt parking, the arrangement was beset by difficulties and it ultimately failed. The parking management company withdrew from the arrangement and removed its equipment from the common property. It also demanded and eventually received a substantial sum in compensation for the failed arrangement;
(m)on 12 November 2020, the Council of Owners resolved to direct the strata manager to direct its solicitors to issue breach notices to Mr Kamil in respect of the following matters:[46]
[46] Minutes of Meeting of Council of Owners held on 12 November 2020 (Exhibit 1 at pages 73 - 74 of the Applicant's Bundle).
Non-removal of personal cameras on the common property without the approval of the Strata Company. Such additional cameras other than two approved and located for the reception desk for the Kamil Group to be removed by 30 November 2020. (Previous request issued in writing in November 2019 and no action has been taken by [Mr] Kamil.)
…
That [Mr] Kamil and his associated business staff have collected money designated for parking without authorisation and in the face of specific directions issued otherwise from the Strata Company, and intentional withholding/diversion of the funds for his own benefit to the financial detriment of the Strata Company and all owners.
(n)a 'Notice of Breach of Strata Act and by-Laws' (Breach Notice) purportedly issued in accordance with s 47 of the ST Act dated 24 November 2020 was served on Mr Kamil by solicitors engaged by the strata manager.[47] The notice alleged that Mr Kamil was in breach of s 83 of the ST Act and Sch 2 [Conduct by-laws] by-law 2(a),[48] 2(b),[49] 4[50] and 12[51] [of the ST Act] and that by 4 December 2020 he is to:[52]
… cease taking money for parking from persons using common property at the strata titles scheme;
…
(o)in the Breach Notice, Mr Kamil was notified that if he did not comply with this notice by the due date:
… the Strata Company will institute legal proceedings at the State Administrative Tribunal against you for each and every breach as outlined in Part A, together with any future breaches without further reference to you and for any relief the Strata Company deems fit including payment of penalty monies, declaratory relief to remedy the contravention, prevention of further contraventions and legal costs.
[47] Breach Notice (Exhibit 1 at pages 83 - 87 of the Applicant's Bundle).
[48] By-law 2(a): 'An owner or occupier of a lot must — (a) use and enjoy the common property in such a manner as not unreasonably to interfere with the use and enjoyment of the common property by other owners or occupiers of lots or of their visitors; and …'.
[49] By-law 2(b): 'An owner or occupier of a lot must — … (b) not use the lot or permit it to be used in such manner or for such purpose as causes a nuisance to an occupier of another lot (whether an owner or not) or the family of such an occupier; and …'.
[50] By-law 4: 'An owner or occupier of a lot must be adequately clothed when on common property and must not use language or behave in a manner likely to cause offence or embarrassment to an owner or occupier of another lot or to any person lawfully using common property'.
[51] By-law 12: 'An owner or occupier of a lot must not — (a) use the lot for a purpose that may be illegal or injurious to the reputation of the building; or (b) make undue noise in or about the lot or common property; or (c) keep animals on the lot or the common property after notice in that behalf given to that person by the council'.
[52] We note that this notice refers to the Scheme by-laws as being in the form in the ST Act, whereas the parties have proceeded in this matter on the basis that the Scheme by-laws are in the form in the Prior ST Act.
We note and we find that the proposed resolution which appeared in the notice of the AGM is different from the resolution which was referred to in the minutes of the AGM held on 11 August 2015 and passed and registered at Landgate. That is, we find that this resolution is, under s 3C(2) and (3) of the Prior ST Act, an 'amended resolution' within the meaning of s 3C of the Prior ST Act.
Sub-issue (a) - whether by-law was 15 properly passed?
Mr Kamil contends that the Strata Company did not validly pass the required special resolution on 11 August 2015 as:
(a)the notice requirements under s 3B[53] and s 3C[54] of the Prior ST Act that the motion is given to owners 14 days prior to the meeting at which they are voted on was not complied with;
(b)by-law 15 was not voted for, or approved, in accordance with the requirements under s 3B and s 3C of the Prior ST Act; and
(c)there is no evidence that s 3C(2) of the Prior ST Act was complied with and therefore s 3C(3) means the amended resolution is of no effect.
[53] Section 3B of the Prior ST Act deals with the requirements for a special resolution to be passed at a general meeting.
[54] Section 3C of the Prior ST Act deals with notice period for a proposed resolution, quorum and other matters required for a resolution or for the passing of an amended resolution.
In the alternative, Mr Kamil contends that even if by-law 15 was properly passed by the Strata Company, if it confers exclusive power on the Strata Company to charge non-exempt users a fee for parking and prevents any lot owners from doing the same, then, it is not consistent with s 43(1) of the ST Act (which relates to exclusive use by-laws) and so is invalid and not enforceable.
The Strata Company contends that the evidence shows that by-law 15 was voted for, or approved, in compliance with the then operative provisions of the Prior ST Act, and Mr Kamil's challenge to the validity of by-law 15 should fail. The Strata Company also contends that there are no facts before the Tribunal bearing upon whether or not the notice contemplated by s 3C(2) of the Prior ST Act was in fact sent within the 7-day period. It further contends the onus rests on Mr Kamil to proffer any evidence establishing affirmatively that such notice was not sent, and that he has not discharged this onus.
The Strata Company also contends that the relief sought by Mr Kamil should be refused in the exercise of discretion because:
(a)the challenge to the validity of by-law 15 was not made until some 7 years after the resolution passing the by-law was made;
(b)the argument that by-law 15 is invalid because there is a difference between the terms notified and those passed was not made until it was raised by the Tribunal on 12 August 2024, some nine years after the resolution passing the by-law was made;
(c)there has been acquiescence by Mr Kamil in the validity of by-law 15; and
(d)save for the omission of the final paragraph dealing with the quantum of fee, the changes to the by-law as notified and as passed are 'wholly typographical and insignificant'.
The Strata Company also contends that by-law 15 does confer exclusive power on the Strata Company to charge a fee to non-exempt users for parking and that this is consistent with s 43(1) of the ST Act with the consequence the by-law is valid and enforceable.
Was by-law 15 voted for, or approved, in accordance with the requirements under s 3B and s 3C of the Prior ST Act?
The special resolution for by-law 15 was passed under the Prior ST Act. Under the Prior ST Act, there were four requirements for the making of a by-law. First, a notice requirement.[55] Second, a quorum requirement.[56] Third, voting requirements.[57] Fourth, a requirement in relation to notification if the resolution is amended, otherwise the amended resolution is 'of no effect'.[58] We will address each of these requirements in turn.
Notice of meeting
[55] Section 3B(1)(a) and 3C(1)(a) of the Prior ST Act.
[56] Section 3B(1)(b) and 3C(1)(b) of the Prior ST Act.
[57] Section 3B(2) and (4) - (7) of the Prior ST Act.
[58] Section 3C(3) of the Prior ST Act.
Mr Kamil says there is no evidence that notice of the motion proposing bylaw 15 was given to the owners in advance of the AGM that was held on 11 August 2015 and, in the alternative, that if the Tribunal accepts the evidence of Mrs Wheeler that notice was given to the members of the proposed by-law that there is no evidence that this notice was given the required 14 days prior to the general meeting as is required by s 3C(1)(a) of the Prior ST Act. Mr Kamil contends that for either reason the Tribunal should find that by-law 15 was not properly passed by the Strata Company.
The Strata Company says that Mrs Wheeler in her witness statement dated 21 February 2024 stated that:[59]
(1)she purchased a lot in the Strata Scheme in 2015;
(2)she received 'in the mail' an Agenda for the AGM which she then misplaced; and
(3)in order to obtain a copy of the Agenda she contacted the strata manager who sent her by email the Agenda, the Council of Owner's Nomination Form and a Proxy Form which she attaches to her statement.
Consideration
[59] Exhibit 2 at page 20 of the Respondent's Bundle.
The Agenda, the Council of Owner's Nomination Form and Proxy Form commence with the words:
This notice dated 24th July 2015 is given pursuant to Schedule 1, by-law 9 of the Strata Titles Act 1985, as amended, on the instructions of the Council of Owners of the Strata Company.[60]
[60] Sch 1, by-law 9 of the Prior ST Act deals with the powers and duties of the secretary of the Strata Company, including the giving of notices on behalf of the Strata Company.
The notice then states:
Notice is given that the meeting will take place at the following date, time and venue.
Date: Tuesday 11th August 2015
Time: 6.00 pm
Venue: 875 Wellington Street, West Perth
The notice contains an item named Agenda item 13 which is as follows:
Proposed special resolution:
A special resolution to change schedule 2 by-laws for the Strata Company registered as The Owners of 875 Wellington Street Strata Plan No 13599; the resolution will change the by-laws by adding schedule 2 by-law no. 15 consisting of the following words:
Parking fees
15.The Strata Company has the power to charge a fee for parking vehicle on the common property, provided that:
a)the following persons are exempt from paying parking fees:
a.a proprietor
b.a proprietor's lessee, unless the lessee is an occupier
c.employees and contractors of a proprietor and proprietor's lessee where the building is the usual place of work for the employee and where the contractor has been engaged to carry out work
d.any other persons declared exempt by the strata council the persons exempt from paying the parking fees shall only claim the exemption when they are parking at the building for the purpose of attending to matters to do with their association with the building;
b)the administration policies for the parking fees are determined and carried out by the strata council;
c)the parking fee is not greater than ten dollars (including GST) per 24 hour period and that the parking fee may be increased by not more than the annual consumer price index for Perth (Transport) Group as determined by the Australian Bureau of Statistics as at 30 June each year.
Section 3C(1)(a) of the Prior ST Act states 'a sufficient notice of a meeting is given if at least 14 days' notice specifying the proposed resolution has been given'. This means that in this case the notice of the proposed resolution must be given by no later than 28 July 2015.
On the basis of Mrs Wheeler's evidence and the notice of meeting, we find that notice of the resolution was given to lot owners prior to the AGM. Further, we find that because the notice of meeting is dated 24 July 2015 that this is evidence in support of the notice requirement having been met since the date marked on the notice is 18 days before the date of the AGM.
The Minutes from the AGM at which the special resolution was passed states that 'The members of the Strata Company have been served notice that the following proposed special resolution would be discussed and put to the vote at this AGM'. Those minutes were subsequently accepted at the AGM on 14 December 2016. We find the statement in the minutes and their subsequent confirmation is evidence in support of the notice requirement having been met.
However, we have also considered whether notice was in fact capable of having been given by post as set out in the minutes, and for the reasons that follow we are satisfied that it was capable of being given by post within the required time.
Section 75 of the Interpretation Act deals with when service of a document is effected when given by post. Section 75(1) of the Interpretation Act deems that service is 'effected at the time when the letter would have been delivered in the ordinary course of post'. We are satisfied and find that in 2015 a letter posted within Perth to an address within the Perth CBD would have ordinarily been delivered the next business day. As 24 July 2015 is a Friday, the last day on which this notice could be posted so as be delivered no later than 14 days before the meeting is on Monday, 27 July 2015.
The real issue that we are therefore required to determine is whether the notice dated 24 July 2015 was posted either before or after 27 July 2015, in the absence of any direct evidence as to when it was in fact posted.
Mr Kamil submits that Mrs Wheeler could have attached to her statement the email which was sent to her by the strata manager, as that email would have on its face set out the date on which the notice was sent to Mrs Wheeler. As Mrs Wheeler did not do so but could have done so, Mr Kamil contends that the Tribunal should infer that she chose not to do so as the email would have proven a fact to her disadvantage.
In the Tribunal's view this submission is erroneous, as Mrs Wheeler's uncontradicted evidence, given in her witness statement, is that the Agenda was emailed to her as a replacement for the Agenda that was sent to her by post. It therefore is of no significance what date the replacement agenda was sent by email, as what is determinative is the date on which the original was received by her.
Section 35(1)(h)(v) of the Prior ST Act required the Strata Company to retain the notices of meetings of the Strata Company and its council for a prescribed period. The prescribed period under reg 25(1)(a) of the Strata Titles (General) Regulations 1996 (WA) (Prior ST Regulations) is a period of 7 years. Section 104(1)(c)(iii) of the ST Act and reg 83 of the ST Regulations currently imposes identical requirements on the Strata Company.
In this case, as the notice was issued in respect of a meeting held on 11 August 2015, the Strata Company would have been required to retain this notice only until 11 August 2022. That is, it was not required to retain the notice as at the date of the commencement of this proceeding on 26 October 2022.
We therefore do not consider that we should draw an adverse inference against the Strata Company for not providing any evidence about the date on which this evidence was in fact posted by the Strata Company. Rather, we have resolved this matter by considering all the evidence which is available to us about this issue.
To our mind, this includes the fact that the notice is marked with a date which is more than 14 days before the date of the AGM, the minutes of the AGM state that the notice was given, that the meeting was chaired by the Strata Company's strata manager, that a large number of owners attended the AGM but none raised an objection to the notice and that the minutes of the AGM were adopted by the Strata Company at its AGM on 14 December 2016.
We therefore find that the notice was given at least 14 days before the AGM as required by s 3C(1)(a) of the Prior ST Act.
Quorum
Mr Kamil contends that under s 3B(1)(b) of the Prior ST Act a special resolution is only capable of being passed by a meeting at which there is a sufficient quorum. For the purposes of that subparagraph, a sufficient quorum is proprietors present at the meeting either personally or by proxy at the time when the resolution is voted who are not less than 50% of the lots in the scheme, and whose votes have a value of not less than 50% of the aggregate unit entitlement of the lots in the scheme. We accept that Mr Kamil has correctly stated this requirement.
We note the scheme documents show there are 80 lot owners and 960 unit entitlements in the strata scheme. A quorum is 40 lot owners or 480 unit entitlements. We also note the AGM minutes show there were 55 lot owners present in person or by proxy (although the minutes say 54) and those lots comprised 663 unit entitlements.
We are therefore satisfied that the minutes of the AGM, which were adopted by the Strata Company at its next AGM in 2016, show the quorum requirements in s 3B of the Prior ST Act were met.[61]
Voting
[61] We note that where the minutes are obviously incorrect, such as to the count of the proprietors present, that the incorrection is of no significance in this matter.
Under s 3B(2) of the Prior ST Act, a special resolution is passed if it is supported by votes:
(1)having a value of not less than 50% of the aggregate unit entitlement of the lots in the scheme; and
(2)of the proprietors of not less than 50% of the lots in the scheme.
Further, the votes against the resolution must not have a value of 25% or more of the aggregate unit entitlement of the lots in the scheme or are not cast by the proprietors of 25% or more of the lots in the scheme.
A reference to votes is a reference to the votes of persons entitled to exercise the powers of voting under the Prior ST Act at the meeting either personally or by proxy.[62] A failure to vote at all does not constitute voting against a resolution.[63]
[62] Prior ST Act, s 3B(4).
[63] Awareness Publications Pty Ltd and The Owners of Fairway Mews [2011] WASAT 165 [27] - [28] and Wybenga and The Owners of Chandler Court Strata Plan 19347 [2020] WASAT 102 [38].
On the basis of the documentary evidence,[64] we find that:
(1)there were 55 lots which voted in person or by proxy which constitutes 68.75% of the lots;
(2)the unit entitlements of the lots which voted amounted to 665 which constitutes 69.27% of the unit entitlements;
(3)there were 25 lots with a total of 295 unit entitlements which did not vote; and
(4)no votes were cast against the resolution.
[64] Minutes of the AGM held on 11 August 2015 (Exhibit 1 at pages 12 and 7 of the Respondent's Bundle) and Strata Plan (Exhibit 1 at pages 3 - 4 of the Applicant's Bundle).
Accordingly, we find that the voting requirements for the passing of a special resolution were met.
Mr Kamil further contends that the required special resolution was not validly passed as the minutes record that the vote passed 'unanimously' when it should have recorded that it passed without dissent. Mr Kamil correctly states that as defined under the Prior ST Act a unanimous resolution is not a resolution without dissent.
On this point, however, we find that the use of the word 'unanimous' in the minutes is used in a non-technical sense to mean no more than that all members present and who voted on the motion were in favour of the motion, and that no member present voted against the motion. That is, we are satisfied that the motion in fact passed as a resolution without dissent.
Notice of amendment of resolution requirement under s 3C(2) of the Prior ST Act
Section 3C(2) of the Prior ST Act requires that 'if a resolution specified in a notice of a meeting is passed with amendment at the meeting the strata company shall, not later than seven days after the meeting, serve a copy of the amended resolution on each proprietor who was not present at the meeting either personally or by proxy at the time when the resolution was voted on'.
Section 3C(3) of the Prior ST Act states that if s 3C(2) of the Prior St Act is not complied with then 'the amended resolution is of no effect'.
As we discussed above, the resolution passing by-law 15 was passed with amendment. While this issue was raised by us with the parties following the Hearing, no further evidence was adduced by either party relating to compliance with s 3C(2) of the Prior ST Act. However, submissions were filed on this issue by the parties.
Mr Kamil submits that as the by-law passed was different to that of which notice was provided, so it is of no effect due to the operation of s 3(C)(3) of the Prior ST Act. Mr Kamil places reliance on the construction of Bromberg J on the words 'no effect' in s 326(1) of the Fair Work Act 2009 (Cth) (FWA) in Australian Education Union v State of Victoria (Department of Education and Early Childhood Development) [2015] FCA 1196. Section 326 of the FWA commences as follows: '[a] term of a modern award, an enterprise agreement or a contract of employment has no effect to the extent that the term …'[.]
At [291] of that decision Bromberg J said:
To my mind, the phrase 'no effect' is emphatic. To the extent that s 326(1) renders a term to be of 'no effect', the term is a nullity. It is a term the effect of which has been annulled. It is lifeless to the extent to which it purports to permit or require that which s 326(1) does not countenance: c.f. the observations of Isaacs and Gavan Duffy JJ at 670 - 671 of Roach v Bickle (1915) 20 CLR 663 in relation to the phrase 'shall not be effected, or if effected shall not be valid'.
Mr Kamil submits the effect of s 3C(2) of the Prior ST Act is that s 200(2)(n) and s 200(1) 'does not provide a discretion for the Tribunal to make orders in conflict with the words of [s 3C(3) of] the [Prior ST] Act'.
Mr Kamil also submits the Tribunal is not a court and it is limited in these proceedings to the jurisdiction conferred by the SAT Act and the ST Act. Consequently, the Strata Company's submission that we possess powers conferred on a court of plenary jurisdiction in a judicial review application 'is inapposite'.
Finally, Mr Kamil contends that the concept of an onus of proving facts is not applicable to this Tribunal, and to this effect he relies on statements by Allanson J in Kamil at [71].
The Strata Company submits, firstly, that the Tribunal does not have before it 'the necessary factual basis to determine that the criteria for invalidation under s 3C(2) has arisen. In those circumstances, the Tribunal should not be satisfied that s 3C(2) has been breached'.
The Strata Company, secondly, submits that even if we find that s 3C(2) of the ST Act has been breached, that we retain a discretion under s 200(2)(n) and s 200(1) of the ST Act to grant relief and to declare that by-law 15 is of no effect. The Strata Company points to judicial review proceedings where, it says, courts have a discretion to refuse the grant of relief where there has been delay by an application in instituting a challenge, or where it can be said that the applicant waived or acquiesced in the validity of the decision.
The Strata Company claims both circumstances operate here. The Strata Company points to delay, saying that Mr Kamil did not assert that by-law 15 is invalid on the basis of a difference between the proposed resolution and the resolution passed by the Strata Company until this issue was raised by us on 12 August 2024. Next, the Strata Company asserts that Mr Kamil acquiesced in the validity of by-law 15 because he personally seconded the resolution by which it was passed. Finally, the Strata Company says the amended by-law is a change which is 'wholly typographical and insignificant'.
The Strata Company also submits that the onus to establish the factual basis for the contention that s 3C(2) and s 3C(3) of the Prior ST Act were not complied with rests with Mr Kamil.
Consideration
For the reasons we will now give, we accept the submission made by Mr Kamil that the concept of an onus of proof is not applicable to these proceedings before us.
This is because we accept that no party bears an onus in proceedings such as this: AJ Smith (as she then was) in Gemmill Homes Pty Ltd v Sanders [2018] WASC 179 at [123] citing Yao-Jing Li v Minister for Immigration & Multicultural Affairs (1997) 74 FCR 275, 288.[65]
[65] 'In administrative proceedings, unless an onus is expressly created by statute or arises by inference from the statute, a party to proceedings does not legally bear an onus of proof of a particular material fact'.
Further, in Kamil at [71] - [72] Allanson J said:
71Terms such as onus and standard of proof are 'borrowed from the universe of discourse which has civil litigation as its subject'. Without some express statutory application, they are not applicable to decision-making in a body such as the State Administrative Tribunal.
72To apply an onus of proof in Tribunal proceedings may be an error of law.
We also note that there is no presumption of validity of Scheme by-laws in the ST Act. This is made clear by s 59(2) of the ST Act which provides that:
It must not be presumed that, because the Registrar of Titles has registered scheme by-laws, the by-laws are valid or enforceable.
We also accept Mr Kamil's submission that the Tribunal is not a court and it is limited in these proceedings to the jurisdiction conferred by the SAT Act and the ST Act, and that consequently due to s 3C(3) of the Prior ST Act we are not possessed of a discretion to refuse the grant of relief under s 200(1) or s 200(2)(n) or (m) of the ST Act where there has been delay by an applicant in instituting a challenge, or where it can be said that the applicant waived or acquiesced in the validity of the decision.
However, we do not accept Mr Kamil's submission that there is here an absence of evidence showing that s 3C(2) of the Prior ST Act was complied with, and so we are required to find that s 3C(2) of the Prior ST Act was not complied with.
This is because while we accept that some lot owners were not present at the AGM on 11 August 2015 and were therefore required to be given notice of the amended resolution, there is no evidence that persuades us that s 3C(2) of the Prior ST Act was not complied with and that the required notice was not given to the absent lot owners. No witnesses gave evidence on this issue and none of the documents contain any express evidence that notice of amendment was or was not served. Rather, to the contrary, we are satisfied the notice of the amended resolution was sent. This is for the following reasons:
(a)for the reasons given above, the Strata Company was not required as at either the time proceeding CC 1565 of 2022 was lodged with the Tribunal or at the time this issued was raised by us on 12 August 2024 to have retained notices sent to lot owners under s 3C(2) of the Prior ST Act;
(b)none of the lot owners who were absent at the AGM on 11 August 2015 is a party to these proceedings, or has provided evidence to us;
(c)the AGM on 11 August 2025 was chaired by the strata manager who it can be inferred was familiar with the requirements for service of an amended resolution on the absent lot owners since the notice of the AGM and the minutes of the AGM expressly refer to compliance with formal requirements under the Prior ST Act for other matters relating to the holding of the AGM and the making of resolutions at the AGM;
(d)the Notification of Change of By-Laws lodged with Landgate by the Strata Company asserts that the special resolution passed by the Strata Company became unconditional on 14 September 2015 from which we draw an inference that the strata manager did not consider that there were any impediments to the registration of the amendment to the by-laws;
(e)at least five lot owners who did not attend at the AGM on 11 August 2015 either in person or by proxy (lot owners 26, 28, 49, 69 and 72) did attend the AGM on 14 December 2016 either in person or by proxy and there is no record in the minutes of the latter AGM that any objections were made by those lot owners that they had not been served with notice of the amended resolution;
(f)the minutes of the AGM on 11 August 2016 were adopted by the Strata Company on 14 December 2016; and
(g)we have found that the other formal requirements for the making of the special resolution were met.
Given that we have found that both the Wheelers and Mr Kamil have been charging guests a fee for parking in the Parking Bays on the common property and that the Council of Owners declared that the Strata Company would take legal action against any person who charges, collects and keeps parking fees for parking in the Parking Bays on the common property, we find that Mr Kamil has been treated differently to the Wheelers in so far as proceedings have been brought against Mr Kamil in the Tribunal and not the Wheelers (although it is apparent that the Strata Company had additional issues with Mr Kamil concerning parking). We therefore find that the proceeding initiated by the Strata Company in respect of the parking fees is unfairly prejudicial and discriminatory toward Mr Kamil. However, for the reasons we give at paragraph [297], we are not persuaded that we would exercise our discretion not to make the orders sought by the Strata Company.
In the Strata Company's Opening Submissions, it was stated that:
Mrs Wheeler is expected to state in oral evidence that any money taken by her or her husband from visitors parking on common property during the period that the contractor was present at the Strata Scheme was deposited into the parking meter on the common property.
However, neither Mr nor Mrs Wheeler nor the contractor gave evidence at the Hearing so there is no evidence before the Tribunal consistent with what was said in the Opening Submissions. Had there been evidence to the effect of paragraph [279] which was accepted by the Tribunal, then this would have been a clear basis for the differential treatment given that proceedings were commenced against Mr Kamil in the Tribunal in 2020 (that is, prior to the removal of the parking meter).
CCTV Cameras
On the basis of the documentary evidence before the Tribunal, we find:
(a)on 7 August 2015 the Strata Company entered into an agreement with Joalicam Pty Ltd (Joalicam) for the provision of, inter alia, security services including the use of a CCTV system owned by Joalicam and installed on common areas for security purposes for a 5-year period from 1 July 2015;[123]
[123] Agreement between The Owners of Wellington Street Strata Plan No. 13599 and Joalicam dated 7 August 2025 (Exhibit 1 at pages 4 - 8 of the Respondent's Bundle); Statement of Mr Kamil (Exhibit 1 at page 118 of the Respondent's Bundle).
(b)Mr Kamil in or about 2017 placed four CCTV cameras on the common property to maintain the security and integrity of the building because the cameras installed by Joalicam were not working properly or had been removed;[124]
[124] Various communications from Mr Kamil (Exhibit 1 at pages 71, 77 - 99 of the Respondent's Bundle); Witness statement of Mr Kamil (Exhibit 1 at pages 118 - 120 of the Respondent's Bundle).
(c)Mr Kamil provides CCTV footage from the four CCTV cameras to assist the WA Police and other persons;[125]
[125] Various communications from Mr Kamil (Exhibit 1 at pages 74 - 76 of the Respondent's Bundle); Witness statement of Mr Kamil (Exhibit 1 at pages 118-120 of the Respondent's Bundle).
(d)a number of other items have been placed by the Wheelers on the common property such as a clock, a sign, safe boxes;[126] and
[126] Photographs of other items on the common property (Exhibit 1 at pages 107 - 113 of the Respondent's Bundle).
(e)on 31 October 2019, the Council of Owners resolved to:[127]
[127] Minutes of Meeting of Council of Owners held on 31 October 2019 (Exhibit 1 at page 67 of the Applicant's Bundle).
(a)acknowledge that there are two apartment operators operating hotel businesses in the building (1. Greg & Heid Wheeler AND 2. Eddie Kamil) and as such, there needs to be an agreement established between the Strata Company and each of these two owners to determine the use of common property under certain terms and conditions that will include, but not limited to, appropriate compensation for all owners; and
(b)…
(c)in the meantime, under an interim arrangement, allocate the larger of the operators (established by the number of apartments under the operators' control by way of direct ownership or by ownership by entities they control and apartments leased by entities under their control) the main reception desk (nearest the front door of the reception room) and allocate the reception desk that is next to the south wall of the reception room to the smaller owner and that the operators each have exclusive use of their respective reception desk, which shall include the right for the operator to the [sic] install no more than 2 security cameras behind their respective desks; further if an operator has installed security cameras behind a desk he has not been allocated under this resolution, he must remove those cameras before 10am 1st November 2019; likewise any other technology hardware that has been installed by an operator in, at or on the reception desk that has not been allocated to the operator by this resolution must be removed by the operator before 10 am 1st November 2019.
(f)on 31 October 2019 the Council of Owners resolved to acknowledge that Mr Kamil had installed a number of security cameras on common property without the permission of the Strata Company and to order him to remove the security cameras within 7 days failing which the Strata Company would seek an order from the Tribunal to resolve the matter;[128]
[128] Minutes of Meeting of Council of Owners held on 31 October 2019 (Exhibit 1 at page 68 of the Applicant's Bundle).
(g)on 17 December 2019, the Council of Owners invited the operators to apply for a licence from the Strata Company to operate a business on the common property. This is apparent from the letter sent to Mr Kamil in which he is also asked to remove, inter alia, his security cameras except for those installed behind the reception desk;[129]
(h)on 17 December 2020 the following is recorded in the Minutes of the AGM: [130]
Security Cameras
This is seen as vital and urgent due to the extraordinary volume and extent of damage being inflicted on the building daily and the unruly behaviour being exhibited by some guests and their visitors without recourse to compensation from them. Thus, funds are required for this purpose and will be reconsidered against during this AGM as photographic evidence is required to mitigate damage and initiate controls for the safety of all patrons.
(i)on 23 December 2020, the Council of Owners resolved as follows:[131]
… in principle, that authority could be given to a Council of Owners to make decisions, and that management of exclusive use of common property by operators be authorised by way of agreements between the Strata Company and any operator.
Furthermore, that failure to reach agreement with an operator would mean that that operator has no rights to any exclusive areas on the common property.
The Strata Company resolve to manage the amenities of the common area by formulating by-laws to give effect to how amenities are used and who is responsible for them.
(j)at the same meeting, the Council of Owners confirmed that the installation of cameras as approved at the AGM was to proceed;[132] and
(k)a Facilities Licence was entered into between Greg Wheeler Contracting Pty Ltd and the Strata Company by which the Strata Company as licensor granted Greg Wheeler Contracting Pty Ltd, as licensee, a license to use parts of the common property on the strata scheme for the purposes of conducting an accommodation business on the lots. The Facilities Licence was signed by the parties on 30 March 2023 and 27 April 2023 respectively and the Licence Fee was paid on 8 May 2024.[133]
[129] Letter to Mr Kamil from Council of Owners dated 17 December 2019 (Exhibit 1 at pages 79 - 82 of the Applicant’s Bundle).
[130] Minutes of the AGM held on 17 December 2020 (Exhibit 1 at page 73 of the Respondent's Bundle).
[131] Minutes of Meeting of Council of Owners held on 23 December 2020 (Exhibit 1 at page 78 of the Applicant's Bundle).
[132] Minutes of Meeting of Council of Owners held on 23 December 2020 (Exhibit 1 at page 78 of the Applicant's Bundle).
[133] Receipts for payment of licence fee dated 8 May 2024 (Attachment 1 and Attachment 2 to the Closing Submissions dated 9 May 2024 filed on behalf of the applicant in CC 1751 of 2022 and CC 1756 of 2022).
On the basis of the documentary evidence referred to above, we find that as early as 2019 the Council of Owners was trying to regularise the use of the common property by the Wheelers and Mr Kamil and both operators were told to remove any cameras that they had installed. Further, we find that in 2020 both the Wheelers and Mr Kamil were invited to apply for a licence for the use of the common property, but it was only the Wheelers, through Greg Wheeler Contracting Pty Ltd, who entered into a licence agreement with the Strata Company for the use of parts of the common property to conduct their business.
In our view, the fact that proceedings were commenced against Mr Kamil in relation to the four CCTV cameras and not the Wheelers is explicable because there is no evidence that the Wheelers installed security cameras on the common property. Further, although the timing of the entry into the Licence Agreement may be viewed with reservation since it postdates the commencement of proceedings in the Tribunal, in our view the Licence Agreement is the culmination of a process which was commenced 4 years earlier to regularise the use of the common property by the operators and there is no evidence that Mr Kamil engaged with that process. In addition, the Strata Company is not seeking the removal of all the CCTV cameras that Mr Kamil has placed on the common property or other items placed in the lobby. Finally, the Strata Company wishes to install its own CCTV cameras and this is consistent with the statutory duty of the Strata Company to control and manage the common property for the benefit of all owners.
We therefore find that the proceeding initiated by the Strata Company in respect of the CCTV cameras is not unfairly prejudicial and discriminatory toward Mr Kamil.
However, we note that in Linx, notwithstanding that the Tribunal accepted that there was no punitive intent behind the application, the Tribunal declined to make orders under s 200 of the ST Act requiring the removal of vinyl planking and the reinstatement of the tiling on the common property floor for the following reasons:
(a)at the time the works were done, the lot owner was not aware that the tiling constituted common property and had acted in good faith;
(b)there was no evidence of any negative consequences of the floor works for insurance purposes;
(c)the rule requiring resolution without dissent had never been imposed on any alteration to common property made by an owner or occupier in that 10 years that the Strata had existed and the council and Strata Company had not insisted on a uniform approach to additions to the common property;
(d)a number of unauthorised alterations to common property were identified and none had resulted in requests to the lot owners to restore the common property to its original state;
(e)the vinyl planks had been in place for over 2 years; and
(f)there was no evidence that any other lot owner or occupier had suffered a negative impact from the vinyl planking or that the floor works had had any deleterious effect on the integrity of the building.
In our view, the factors which resulted in the Tribunal in Linx declining to grant relief are still relevant to the exercise of the discretion under s 200 of the ST Act, although some of those factors would equally fall for consideration under s 119 of the ST Act to the extent that what is alleged is differential treatment between lot owners. We will consider these factors later in our reasons.
Issue 11: If Mr Kamil is in breach of the ST Act and/or the Scheme bylaws by charging and retaining fees from guests who park on common property, what relief, if any should be granted to the Strata Company
As set out above, the Tribunal has a discretion under s 200(2)(m) of the ST Act to make an order requiring a person to take specified action or to refrain from taking specified action to remedy a contravention or prevent further contraventions of the ST Act or Scheme by-laws.
In accordance with the facts agreed by the parties we have found that in charging guests a fee for parking on the common property and retaining that fee, Mr Kamil is in contravention of s 83 of the ST Act, s 91(1)(b) of the ST Act and Scheme by-law 1(2)(a). Therefore, a scheme dispute exists between the strata company and Mr Kamil in relation to the parking and the prerequisite to the making of an order under s 200 of the ST Act is met.
We have also found that Mr Kamil intends to continue to charge guests a fee for parking on the common property and to retain those fees for himself. That being so, we find that unless Mr Kamil is restrained, he will continue to contravene s 83 of the ST Act, s 91(1)(b) of the ST Act and by-law 1(2)(a).
In our view, having regard to the principles relating to the exercise of the discretion to make orders under s 200 of the ST Act, it is appropriate to make an order under s 200(2)(m) of the ST Act that Mr Kamil refrain from charging and retaining fees for parking on the common property. This is for the following reasons.
First, Mr Kamil has admitted that he has charged and retained fees for parking on the common property and that he intends to continue to do so. Given that we have found that Mr Kamil is not authorised to charge and retain fees for parking on the common property, it is appropriate that an order be made which requires him to refrain from charging and retaining fees for parking on the common property.
Second, while Mr Kamil has argued that the Wheelers have also charged and retained fees for parking on the common property, Mr Kamil has not lodged an application in the Tribunal in respect of their conduct or the failure of the Strata Company to take action against them.
Third, by his conduct, Mr Kamil is depriving the other lot owners from sharing in the fees being charged for parking on the common property. Whilst we accept that the Wheelers have also charged and retained fees for parking on the common property and that the Wheelers and Mr Kamil together own 57 of the 80 lots, the remaining lot owners are affected by Mr Kamil's conduct. It is not fair if the other lot owners gain no benefit from the fees for parking on the common property when the common property is required to be controlled and managed by the Strata Company for the benefit of all of the lot owners. We have also noted that Mr Kamil, unlike the Wheelers, has stated an intention to continue to collect and retain parking fees.
Fourth, it is appropriate for a strata company to make an application to the Tribunal when a lot owner is undermining the statutory duty of the strata company to control and manage the common property for the benefit of all the owners under s 91(1)(b) of the ST Act. In this case, the Strata Company had earmarked the fees for parking on the common property for use to offset the monies required to be paid under the PPM Act, but Mr Kamil's actions are preventing the Strata Company from doing so. The failure by the Strata Company to fulfil that statutory duty could result in an application being brought in the Tribunal by a lot owner against the Strata Company to enforce that duty.
Fifth, issues concerning fees for parking on the common property have been a vexed issue between the parties for many years and orders are required to resolve the dispute.
Therefore, although we have found that the Strata Company acted in contravention of s 119 of the ST Act in commencing proceedings against Mr Kamil in respect of the parking fees, we do not consider that the contravention should preclude us from making orders. This is because in allowing not only Mr Kamil but the Wheelers to charge guests for parking on the common property, the Strata Company is failing in its statutory duty to control and manage the common property for the benefit of all of the lot owners. Further, the making of such an order will act as a deterrent to other lot owners of the Strata Scheme [including but not limited to Mr and Mrs Wheeler] from charging for and receiving parking fees for vehicles parked on the common property. Finally, an order will protect the financial interests of the owners of lots other than Mr Kamil and the Wheelers.
Finally, we observe we have not been asked and so we will not determine whether Mr Kamil should account to the Strata Company for the fees he has charged and retained.
Declaration - validity of by-law 15
As noted above, the Tribunal has a discretion under s 199 of the ST Act to make a declaration concerning a matter in the proceeding.
We have found that by-law 15 is a valid by-law of the Strata Scheme although that by-law is currently inoperative.
In our view, having regard to the principles relating to the exercise of the discretion to grant declaratory relief, it is appropriate to make a declaration under s 199(3)(c) of the ST Act that by-law 15 is a valid by-law of the Strata Scheme. This is for the following reasons.
First, Dumo from Dubbo has expressly challenged the validity of by-law 15 in the proceedings, so the issue is a real issue rather than an abstract or hypothetical issue. The making of a declaration will resolve this dispute once and for all.
Second, the making of a declaration concerning the validity of by-law 15 should produce a foreseeable consequence, namely, to enable the Strata Company to charge for parking on the common property if by-law 15 becomes operative and in the exercise of its statutory duty to control and manage the common property for the benefit of all lot owners.
Third, the Strata Company has a real interest in this matter in that the Strata Company has a statutory duty under s 91(1)(b) to control and manage the common property for the benefit of all the lot owners.
Declaration-power of Strata Company to charge for parking on common property
We have also found that the Strata Company has the exclusive power pursuant to s 91(1)(b) of the ST Act and by-law 15 to charge for parking on the common property.
In our view, having regard to the principles relating to the exercise of the discretion to grant declaratory relief, it is appropriate to make a declaration under s 199(3)(c) of the ST Act that pursuant to s 91(1)(b) of the ST Act and by-law 15, the Strata Company has the exclusive power to charge for parking on the common property for the benefit of all of the lot owners. This is for the following reasons.
First, because Mr Kamil has expressly challenged the power of the Strata Company to charge a fee for parking on the common property. The making of a declaration will resolve this dispute once and for all.
Second, the making of a declaration concerning the power of the Strata Company to charge a fee for parking on the common property should produce a foreseeable consequence, namely, to enable the Strata Company, once the Council of Owners has developed an administrative policy or policies, to charge for parking on the common property for the benefit of all the lot owners.
Third, the Strata Company has a real interest in this matter in that the Strata Company has a statutory duty under s 91(1)(b) of the ST Act to control and manage the common property for the benefit of all the lot owners.
Although we are satisfied that the Wheelers have also charged and retained fees for parking on the common property, we do not consider that it is appropriate for a declaration to be made which applies to lot owners in the Strata Scheme more generally given that no lot owners were separately joined as a party to the proceedings before the Tribunal. We accept the parties' contentions that a declaration which names or enjoins another person who is a lot owner but not separately a party to the proceeding would be objectionable notwithstanding that they are a member of the Strata Company which is a party to each of the proceedings in the Tribunal. This is because a declaration is intended to state the rights of the parties rather than persons who are not parties.
Issue 12: If the placement of the four CCTV cameras is an unapproved alteration of a structure or a structural alteration to common property, what relief, if any, should be granted to the Strata Company?
We have found that in placing the four CCTV cameras on the common property without a resolution without dissent and refusing to remove them, Mr Kamil is in contravention of s 91(1)(b) of the ST Act
Therefore, we are satisfied a scheme dispute exists between the Strata Company and Mr Kamil in relation to the four CCTV cameras and the prerequisite to the making of an order under s 200 of the ST Act is met.
We now consider the relief, if any, that should be granted to the Strata Company in respect of the four CCTV Cameras.
The Strata Company contends that the cameras, the magnetic plates and the securing screws should all be removed by Mr Kamil and the common property made good.
If a Strata Company considers that any part of the common property is the subject of any unwarranted privileged use by any owner or occupier of a lot, then it may take action under s 91(1)(b) of the ST Act to restore the commonality of entitlement which underlies the concept of common property.[134]
[134] Rosneath [11] and [40]; Council of Owners-Strata Plan 8969 and Cleaver-Wilkinson [2013] WASAT 196 [12].
In Owners of Units Plan No 68 v Haughey [2016] ACAT 131 the respondent had installed a hot water system on a common property wall of a unit complex. The Tribunal said at [57] that:
The installation of the hot water system on the wall amounted to an appropriation of an area of the common property for the benefit of the respondent. That the use may be minor is beside the point. It is clear that such a use must be authorised either by the granting of a special privilege to use the common property … or some other statutory means[.]
We have found that Mr Kamil does not have the authority of the Strata Company to install the four CCTV cameras on the common property walls. In addition, none of the Scheme by-laws meet the description of an exclusive-use by-law[135] by which Mr Kamil has been given special privileges over the common property. Further, there is no evidence that Mr Kamil has a lease or a licence over that part of the common property which he has appropriated. Finally, we have found that the proceeding initiated by the Strata Company in respect of the CCTV cameras is not unfairly prejudicial and discriminatory toward Mr Kamil.
[135] See Garman Nominees Pty Ltd and Scope Property Group Pty Ltd [2024] WASAT 32 [41].
In our view, the decision in Linx is distinguishable because in this case there is no evidence before the Tribunal about whether or not the other items of property constitute the alteration of a structure on the common property or the erection of a structure on the common property and, if so, whether they were authorised. Further, the Tribunal in Linx did not find that the lot owners were in acting in contravention of the Strata Company's statutory duty under s 91(1)(b) of the ST Act. Finally, the Tribunal in Linx was not faced with a situation where the Strata Company wanted to install the same type of items on the common property for safety and security purposes.
In our view, having regard to the principles relating to the exercise of the discretion to make orders under s 200 of the ST Act, it is appropriate to make an order under s 200(2)(m) of the ST Act that Mr Kamil remove the four CCTV cameras from the common property and make good any damage. This is for the following reasons.
First, the four CCTV cameras were installed without authorisation and Mr Kamil has refused the repeated requests of the Strata Company to remove the cameras.
Second, the Strata Company wants to install its own CCTV cameras on the common property for safety and security reasons in the exercise of their statutory duty under s 91(1)(b) of the ST Act.
Third, it is appropriate for the Strata Company to make an application to the Tribunal when a lot owner is undermining its statutory duty to control and manage the common property for the benefit of all the lot owners under s 91(1)(b) of the ST Act.
Fourth, issues concerning the four CCTV cameras on the common property have been an ongoing issue between the parties for many years and orders are required to resolve the dispute.
Fifth, the Strata Company is not seeking the removal of all Mr Kamil's cameras on the common property and has shown, in our view, a commonsense approach in their efforts to resolve the dispute.
Therefore, we consider that it is appropriate for Mr Kamil to undertake the removal and make good the damage within 14 days.
Conclusion
CC 1751 of 2020
For the reasons set out above, we have found that the placement of the four CCTV cameras on the common property is not authorised. We have also found that the placement of these cameras on the common property is in contravention of s 91(1)(b) of the ST Act which requires the Strata Company, rather than an individual lot owner, to control and manage the common property for the benefit of all lot owners.
We have decided, in the exercise of our discretion, to make an order that Mr Kamil remove the four CCTV cameras and make good any damage to the common property within 14 days.
CC 1756 of 2020
We have found that in charging guests fees for parking and retaining those fees Mr Kamil is in contravention of s 91(1)(b) of the ST Act which requires the Strata Company, rather than an individual lot owner, to control and manage the common property for the benefit of all lot owners.
We have also found that in charging guests a fee for parking on the Parking Bays and retaining those fees Mr Kamil is in contravention of s 83 of the ST Act and by-law 1(2)(a) of the Scheme by-laws.
We have also found that together s 91(1)(b) of the ST Act and by-law 15 give the Strata Company the exclusive power to charge for parking on the common property for the benefit of all of the lot owners.
We have decided, in the exercise of our discretion, to make a declaration that the Strata Company has the exclusive power pursuant to s 91(1)(b) of the ST Act and by-law 15 of the Scheme by-laws to charge for parking on the common property for the benefit of all of the lot owners.
We have also decided, in the exercise of our discretion, to make an order by which Mr Kamil is to immediately refrain from charging and retaining fees for parking on the common property.
CC 1565 of 2022
We have found that by-law 15 of the Scheme by-laws is a valid by-law of the Strata Scheme but that it is inoperative because no administration policies have been determined by the Council of Owners.
We have decided, in the exercise of our discretion, to make a declaration that by-law 15 of the Scheme by-laws is a valid by-law.
This application is otherwise dismissed.
Orders
CC 1751 of 2020
The Tribunal orders:
1.Pursuant to s 200(1)(m) of the Strata Titles Act 1985 (WA), the respondent (Mr Kamil) is to remove the four CCTV cameras, magnetic plates and securing screws and make good any damage to the common property within 14 days.
CC 1756 of 2020
The Tribunal declares:
Pursuant to s 199(1) of the Strata Titles Act 1985 (WA):
1.The applicant (the Strata Company) has the exclusive power pursuant to s 91(1)(b) of the ST Act and by-law 15 of the Scheme by-laws to charge for parking on the common property for the benefit of all of the lot owners.
The Tribunal orders:
2.Pursuant to s 200(1)(m) of the Strata Titles Act 1985 (WA), the respondent (Mr Kamil) is to immediately refrain from charging and retaining fees for parking on the common property.
CC 1565 of 2022
The Tribunal declares:
Pursuant to s 199(3)(c) of the Strata Titles Act 1985 (WA):
1.By-law 15 of the Scheme by-laws is a valid by-law of the Strata Scheme known as The Owners of 875 Wellington Street, Strata Plan 13599.
The Tribunal orders:
2.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR E Cade, MEMBER
28 FEBRUARY 2025
[6] ts 93, 29 February 2024.
[27] The deemed conduct by-laws are in Sch 2 of the ST Act.
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