The Owners of 875 Wellington Street, Strata Plan 13599 v Kamil
[2022] WASC 305
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: THE OWNERS OF 875 WELLINGTON STREET, STRATA PLAN 13599 -v- KAMIL [2022] WASC 305
CORAM: ALLANSON J
HEARD: 20 APRIL 2022
DELIVERED : 14 SEPTEMBER 2022
FILE NO/S: GDA 12 of 2021
BETWEEN: THE OWNERS OF 875 WELLINGTON STREET, STRATA PLAN 13599
Appellant
AND
EDDIE AHMED KAMIL
Respondent
ON APPEAL FROM:
For File No: GDA 12 of 2021
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: MS V HAIGH, MEMBER
Citation: [2021] WASAT 126
File Number : CC 1751 of 2020
CC 1756 of 2020
Catchwords:
Administrative law - Appeal from State Administrative Tribunal exercising jurisdiction conferred by Strata Titles Act 1985 (WA) - Where strata company and owner of units in strata scheme in dispute about use of common property - Where owner charging and receiving money for parking on common property - Where owner installed CCTV cameras on common property - Where Tribunal found that it was unable to make findings of fact necessary to resolve dispute - Where Tribunal declined to exercise its broad powers to resolve dispute and confined consideration to specific orders sought in the application - Whether Tribunal failed to exercise its jurisdiction to resolve dispute
Legislation:
Strata Titles Act 1985 (WA)
State Administrative Tribunal Act 2004 (WA)
Result:
Leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | T Pontre |
| Respondent | : | P Lafferty |
Solicitors:
| Appellant | : | GV Lawyers |
| Respondent | : | Butcher Paull & Calder |
Case(s) referred to in decision(s):
City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185; (2016) 50 WAR 466
Comcare v Wuth [2018] FCAFC 13; (2018) 260 FCR 89
King v Commissioner for Consumer Protection [2018] WASCA 194
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72
ALLANSON J:
Introduction
875 Wellington Street is a residential strata scheme. The appellant is the strata company for the scheme. The respondent, Eddie Ahmed Kamil, is the registered proprietor of 18 of the 80 lots in the scheme and runs a private hotel business from those lots.
The Strata Titles Act 1985 (WA) confers jurisdiction on the State Administrative Tribunal to resolve disputes arising under the Strata Titles Act. In 2020, the strata company and Mr Kamil were in dispute about several matters. In late 2020, the strata company brought five applications in the Tribunal. Three of those matters were resolved without hearing. This appeal concerns the other two, which were determined on the papers following written submissions.
The disputes are about Mr Kamil's use of the common property of the scheme. He has been charging and receiving fees for parking on the common property, and he has installed four CCTV cameras on the common property. In each application, the strata company sought orders that Mr Kamil take action to remedy a contravention or prevent further contravention of the Strata Titles Act, or scheme by‑laws.
The Tribunal declined to make the orders sought, and declined to exercise its broader powers to make any order it considered appropriate to resolve the dispute or proceedings. The result is that the strata company and Mr Kamil remain in dispute about his use of the common property, and whether Mr Kamil is entitled to continue what he is doing remains unresolved.
The State Administrative Tribunal Act2004 (WA)
The State Administrative Tribunal is constituted by the State Administrative Tribunal Act 2004 (WA).
By s 9:
The main objectives of the Tribunal in dealing with matters within its jurisdiction are —
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.
The Tribunal has two sources of jurisdiction: the provisions of an enabling Act which gives the Tribunal jurisdiction to deal with a matter, and its jurisdiction under the State Administrative Tribunal Act.[1]
[1] Section 13.
The Tribunal exercises both original and review jurisdiction. The present matter lies within original jurisdiction.[2] In exercising original jurisdiction, the Tribunal is to deal with a matter in accordance with the State Administrative Tribunal Act and the enabling Act.
[2] Strata Titles Act, s 209.
Section 32 sets out general matters of practice and procedure, which apply to the Tribunal in both its original and review jurisdictions. Relevantly:
(2)The Evidence Act 1906 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.
…
(4)The Tribunal may inform itself on any matter as it sees fit.
…
(6)The Tribunal is to take measures that are reasonably practicable —
…
(c)to ensure that the parties have the opportunity in the proceeding —
(i)to call or give evidence; and
(ii)to examine, cross-examine or re-examine witnesses; and
(iii)to be heard or otherwise have their submissions considered.
The Tribunal may give directions, including a direction requiring a party to produce a document or other material.[3]
[3] Section 34(5).
The Tribunal may conduct all or part of a proceeding entirely on the basis of documents without the parties or their representatives or any witnesses attending or participating in a hearing.[4]
[4] Section 60(2).
The Strata Titles Act
Scheme disputes
Part 13 of the Strata Titles Act provides for the resolution of 'scheme disputes' by the Tribunal. Scheme disputes include:
(a)a dispute between scheme participants about —
(i)the scheme documents, including the validity of scheme by-laws; or
(ii)the performance of, or the failure to perform, a function conferred or imposed on a person by this Act or the scheme by-laws; or
(iii)an alleged contravention of this Act (other than an offence); or
(iv)a resolution or decision of a strata company or the council of a strata company, including its validity; or
(v)the appointment or election of a member of the council or an officer of a strata company, including its validity; or
(vi)any other matter arising under this Act or the scheme by-laws;[5]
[5] Section 197(1)(a).
An application for the resolution of a scheme dispute can be made to the Tribunal by a party to the dispute.[6]
[6] Section 197(4).
Scheme participants include the strata company, and a member of the strata company.
By s 200(1), in proceedings under the Strata Titles Act, the Tribunal may make any order it considers appropriate to resolve the dispute or proceeding. Section 200(2) sets out, 'without limitation', orders which the Tribunal may make on an application under the Strata Titles Act. They include 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.[7]
[7] Section 200(2)(m).
The Tribunal may also make a declaration concerning a matter in the proceeding instead of, or in addition to, any order.
Other relevant provisions
A strata titles scheme is registered when the scheme documents are registered and incorporated in the register. The scheme documents include the scheme by-laws.[8]
[8] Section 12(1).
On registration of a strata titles scheme, a strata company is established for the strata titles scheme.[9] A strata company is comprised of the owners for the time being of the lots in the strata titles scheme (who are the members of the strata company).[10]
[9] Section 14(1).
[10] Section 14(8).
These proceedings concern the use of common property.
Section 7 of the Act provides for strata title schemes so as to effect a physical division of a parcel of land into two or more lots, and may include common property 'to be administered by the strata company'. The scheme may limit how the common property may be dealt with.
Common property vests in the owners of lots in a strata scheme as tenants in common in shares proportional to the unit entitlements of their respective lots.[11]
[11] Section 13. The schedule of unit entitlements is a registered scheme document.
Part 4 div 4 provides for scheme by-laws. On registration of a strata titles scheme, the governance and conduct by-laws set out in sch 1 and sch 2 are taken to be registered for the scheme, unless amended or repealed by other registered by-laws.[12] By-laws take effect as if they were a deed containing mutual covenants by each person to whom they apply, including the strata company and members.[13]
[12] Section 39.
[13] Section 45(2).
By-laws may include exclusive use by-laws which confer exclusive use or special privileges over the common property or specified common property on the occupiers of specified lots.[14] Neither party contended that exclusive use by-laws had been made in this case.
[14] Section 43.
Section 83 provides:
The owner or occupier of a lot must not use, or permit the use of, the lot or common property of the strata titles scheme in a way that interferes unreasonably with the use or enjoyment of another lot or the common property by a person who is lawfully on the lot or common property.
Part 8 div 1 sets out the functions of the strata company. The strata company must control and manage the common property for the benefit of all the owners of lots.[15] The strata company may sue and be sued for rights and liabilities related to the common property as if it were the owner and occupier of the common property.[16]
The by-laws
[15] Section 91(1).
[16] Section 91(3).
The strata plan for 875 Wellington Street, West Perth, was lodged in 1986.[17] In 1986, the Act provided that the sch 2 by-laws were model provisions which were optional.[18] The documents before the court do not show whether or to what extent they were then adopted.
[17] Applicant's Bundle of Documents in the Tribunal, 6.
[18] See s 42(1).
Section 44 and schedules to the Act provide for the by-laws of a strata scheme. Section 44 was inserted by amendment in 2018.[19] The schedules were amended in 1995,[20] and again in 2018.[21]
[19] Strata Titles Amendment Act 2018.
[20] Strata Titles Amendment Act 1995 [No 58 of 1995].
[21] Strata Titles Amendment Act 2018, s 88.
In submissions before the Tribunal, the strata company relied on the following by-laws:
(1)Schedule 2, by-law 2:
Use of common property
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
(2)Schedule 2, by-law 4
Behaviour of owners and occupiers
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.
(3)Schedule 2, by-law 12.
Additional duties of owners and occupiers
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[.]
(4)By-law 15 passed by special resolution at a meeting of the strata company on 11 August 2015:
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.[22]
[22] The respondent seconded the motion.
The evidence does not disclose what other by-laws were in force, and the strata company did not rely upon any other by-law. I assume - the parties not having referred to it either before the Tribunal or in this appeal - that sch 2, by-law 1, which specifically deals with parking on common property, was not in force for this scheme.
The applications in the Tribunal
CC 1751 of 2020: parking
The strata company commenced proceedings in the Tribunal on 18 December 2020 'for resolution of a scheme dispute, being a dispute between scheme participants about… [Mr Kamil] charging for and collecting parking fees for vehicles parked on common property at the strata scheme'. The strata company sought an order under s 200(2)(m) of the Strata Titles Act 'that [Mr Kamil] immediately refrain from charging for and receiving parking fees for vehicles parked on common property at the strata scheme'.
The grounds of the application, so far as they are material, were:
11.The Applicant by resolution of the Council of Owners on 12 December 2019 authorised the Applicant to contract with Secure Parking Pty Ltd for the management of parking on the common property at the strata scheme which includes the charging for and collection of parking fees.
…
14.[Mr Kamil] has and is charging for and collecting parking fees SO21 for vehicles parked on common property at the strata scheme without the approval of the Applicant.
15.A Notice of Breach was issued to [Mr Kamil] on 25 October 2019.
…
17.Notwithstanding the Notice [Mr Kamil] has continued to charge for and collect parking fees.
The application documents also included:
(1)Minutes of a meeting of members of the Council of the Strata Company held on 12 November 2020, at which the Council resolved to instruct its lawyers to issue relevant breach notices.
(2)Minutes of a meeting of members of the Council held 12 December 2019. Relevantly, the minutes note Parking By‑Law 15 to the effect that the strata company has the power to charge a fee for parking on the common property, and resolved to accept a proposal from Secure Parking.[23]
(3)Heads of Agreement with Secure Parking Pty Ltd, dated 16 December 2019, for a five year management agreement for parking at 875 Wellington Street.[24]
[23] Annexure C.
[24] Annexure D.
On 23 February 2021, Mr Kamil filed a response in which he admitted the resolution passed on 12 December 2019, but denied it entitled the strata company to enter into a contract with Secure Parking, denied the resolution was valid, and denied it authorised the strata company to enter into the contract.
CC 1756 of 2020: CCTV
The second matter before the Tribunal was an application for resolution of a scheme dispute about Mr Kamil's installation of CCTV cameras on the common property without the approval of the company. The strata company sought an order pursuant to s 200(2)(m) requiring Mr Kamil to remove four CCTV cameras installed on common property and make good any damage to common property.
By his response, Mr Kamil said that he and others had had cameras installed with the permission of the property managers and the strata company, and the cameras were 'now affixed to the premises'. He submitted that CCTV is reasonable and necessary and that CCTV monitoring of the building had been in place for over 10 years with the knowledge and approval of the strata company.
Mr Kamil did not assert that he had any permission to affix the cameras to common property.
The proceedings in the Tribunal
Before the matters were listed for hearing, the Tribunal made orders for the filing of documents, including Mr Kamil's written response to each application, and copies of documents on which the parties proposed to rely.
On 28 January 2021, the strata company filed three documents in CC 1751 of 2020:
(1)Notice of a resolution passed at a meeting of the strata company on 11 August 2015 by which the by-laws in sch 2 of the Strata Titles Act were amended by adding a by-law 15.
(2)A minute of a meeting of the Council requesting the strata manager to instruct lawyers to take action on behalf of the strata company in relation to a breach notice issued to Mr Kamil in November 2020.
(3)Notice of a resolution passed without dissent by the strata company on 6 December 2018 adding two by-laws to those in sch 1 of the Act. Neither is relevant in this appeal.
On 28 January 2021, the strata company also filed notice of a resolution authorising proceedings in relation to the CCTV cameras.
On 13 May 2021, the Tribunal listed all applications for a hearing to commence on 8 July 2021 for five days.
At the first day of the hearing on 8 July 2021, counsel for the strata company opened by reference to the documents filed, referring specifically to the strata plan, and by-law 15 relating to parking. He submitted:
You will have also seen that there is a strata by-law relating to parking that has a role to play in relation to this particular application.
The orders sought by the applicant is that Mr Kamil refrain from charging for and receiving parking fees for vehicles parked on common property at the strata scheme. And this comes about because Mr Kamil has taken it upon himself to receive parking fees and to charge people attending the site for parking fees.
…
The response from Mr Kamil is that there is an attack on various motions. There's an attack on a by-law being not registered at Landgate. There's an attack on resolutions that may or may not have been passed. But it's my submission that those arguments are irrelevant to this whole process. There is nothing that authorises or permits an individual lot owner from using common property in the way that this respondent is using it to his own interests.
So, whether there is a by-law, whether there is a resolution, whether there is an independent contractor who is collecting money or meant to be managing the facility, is essentially irrelevant because what this individual lot owner needs to do is to establish that, and convince the Tribunal, that he has a legal right – he has a legal right to charge and collect moneys from people parking on common property.
Now, I must say that the common property is owned by him as a tenant in common in unit – in a proportions of unit entitlement according to his unit entitlement. He, like all the other owners, has an interest in that land – in that common property, and none of the other lot owners have given him permission to do what he's doing, and the strata company hasn't given him permission for what he's doing. So, the applicant simply needs to establish, to the benefit of the Tribunal, that this respondent is collecting moneys for people parking and not accounting to the strata company for it.[25]
[25] Tribunal ts 7 ‑ 8.
Counsel for Mr Kamil then made short opening submissions:
… we say that the onus lies fairly and squarely on the applicant for it to demonstrate that by doing what he is doing, that is, as my friend has outlined, taking moneys from people using parking lots at the property, he is in breach of the Act.
And we say, having looked at the Act extremely carefully, we say that there's no breach of the Act. And I note that my friend hasn't pointed to any section of the Act upon which that is based. So, unless that position changes, we say that what you have before you, in fact, does not amount to a breach of this Act.
As to the scheme by-laws, we do not object to the fact, and I'm sure we can tender these by consent, if need be, we are governed by the schedule 1 of the standard by-laws under the Act. And I respectfully submit that if you carefully consider those by-laws, Mr Kamil will not be found in breach of any of the standard by-laws. There is no strata management contract that I'm aware of.[26]
[26] Tribunal ts 10.
Counsel for Mr Kamil referred also to by-law 15, submitting that it was not valid, and that it did not, in any event, confer any exclusive right on the strata company.[27]
[27] Tribunal ts 11.
The parties then agreed that, with Mr Kamil admitting that he had been taking parking fees, the application came down to a legal argument as to whether or not that conduct contravened the Act and the by-laws.[28] After conferral, counsel for the strata company advised the Tribunal that Mr Kamil would concede he was taking money for parking on common property and the arguments as to the law would follow.[29]
[28] Tribunal ts 11.
[29] Tribunal ts 13.
Similarly, for the proceedings regarding the CCTV cameras, Mr Kamil admitted that he installed four cameras on common property, and the parties would then make submissions as to whether that was lawful or unlawful and whether they should be removed.[30]
[30] Tribunal ts 14.
Counsel said, as to both matters: 'We have the factual matrix… Therefore we only need to discuss with you the process of then filing written submissions or making oral submissions'.[31]
[31] Tribunal ts 14.
On 9 July 2021, Member Haigh made orders for the filing of written submissions.
In its written submissions, the strata company submitted:
(1)it had entered into a contract with Secure Parking Pty Ltd in 2019 (referring to page 245 of the applicant's Book of Documents);
(2)it was required by the Act to control and manage the common property for the benefit of all of the owners of the lots;
(3)the common property vests in the owners of the lots as tenants‑in‑common in shares proportional to the unit entitlements of the respective lots: s 13(5)(c);
(4)all owners are equally entitled to the use and enjoyment of common property unless restricted by the grant of exclusive use rights, special privileges, leases, licenses or other legal agreement over defined parts or all of the common property;
(5)a lot owner may not use the common property to the exclusion of other lot owners without approval of the strata company;
(6)Mr Kamil has not received approval of the strata company to charge for and receive fees for vehicles parked on the common property;
(7)the common property is for the benefit of all lot owners.
In a section on 'Facts', the strata company referred to a resolution to obtain quotes to install a ticket machine and for funds to go to the company; the engagement of Secure Parking to install a machine and manage parking; and the contract with Secure Parking, entered 16 December 2019.[32]
[32] Written submissions [14] ‑ [17].
The strata company also submitted, as a fact, that, without the approval of the strata company, Mr Kamil charged invitees to common property for parking (which was admitted) and obstructed the Secure Parking ticket machine (which was not admitted).[33]
[33] Written submissions [18].
The strata company submitted that the conduct in obstructing the contractors it had engaged was in breach of the Act and the by‑laws, referring to s 83 of the Act, and by-laws 2, 4 and 12 in sch 2.
In his written submissions, Mr Kamil admitted he had taken money for parking on common property, but further submitted that the applicant was seeking to introduce other evidence by its submissions and that the evidence should not be considered by the Tribunal. Mr Kamil submitted his admission was made on the basis that the parties would deal with the matter by legal submissions.
Mr Kamil further submitted that there was no evidence that he was using common property to the exclusion of others, or exercising exclusive use of any part of the common property or exercising special privileges not open to other proprietors. He submitted that it had not been established that approval of the strata company was required for any particular conduct by an owner or occupier, or that an owner or occupier cannot use the common property for their benefit.
Mr Kamil submitted that it would reverse the onus of proof were he to be required to show that he had approval from the strata company.
The decision of the Tribunal
In broad outline, the Tribunal approached both matters from the perspective that the case was 'framed in terms of the orders sought'.[34] As the strata company sought orders under s 200(2)(m), the strata company must establish that Mr Kamil was in breach of the Strata Titles Act, the scheme by-laws or a strata management contract. The member referred to the Tribunal's broad powers, pursuant to s 200(1) of the Strata Titles Act, to make any order that it considers appropriate to resolve a dispute. It declined to make any order on the basis that the strata company had not sought orders under that sub‑section, nor framed its case against Mr Kamil in that way.
[34] Decision [66].
In the application regarding parking, the Tribunal held that, on the limited agreed facts (including the resolution of 12 December 2019), with no other evidence heard or submitted, it was unable to make any findings about the 'factual matrix'.[35] The Tribunal further held that the strata company had not established that Mr Kamil had contravened the Act or the by-laws by taking money from invitees to park on the common property.[36] The Tribunal did not consider whether Mr Kamil's conduct was inconsistent with the provisions of the Act relating to the common property, including that it be administered by the strata company.
[35] Decision [33].
[36] Decision [45].
In the application regarding the CCTV cameras, the Tribunal held that the erection of the CCTV cameras on the common property was the erection of a structure which must be authorised by a resolution passed without dissent.[37] It further held that there was no evidence of any resolution;[38] and that Mr Kamil did not assert that any such resolution had been passed or that he had approval.[39] It held, however, that in the absence of evidence it could make no finding about whether he had approval, and the strata company had not established any breach.[40]
[37] Decision [77] ‑ [78], [84].
[38] Decision [84].
[39] Decision [84].
[40] Decision [88].
In each case the Tribunal held that it was not persuaded to exercise its discretion to make the orders sought by the strata company.
The appeal
A party to a proceeding in the State Administrative Tribunal may appeal from a decision of the Tribunal, but only if the court to which the appeal lies gives leave to appeal. The appeal can only be brought on a question of law.[41]
[41] State Administrative Tribunal Act, s 105.
Although s 105 uses the word 'appeal', the court is exercising original jurisdiction. The proceedings are not a rehearing: the essential character of s 105 is that it provides for proceedings in which the legal correctness of what the Tribunal has done can be challenged.[42] The subject matter of the appeal is the question of law, which is both a qualifying condition to the invoking of the court's jurisdiction under s 105 and the subject matter of the 'appeal' itself.[43]
[42] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) [2001] HCA 49; (2001) 207 CLR 72 [15]; Osland v Secretary, Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18]. And see City of Mandurah v Australian Flying Corps & Royal Australian Air Force Association (WA Division) Inc [2016] WASCA 185; (2016) 50 WAR 466 [37] ‑ [39]; Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361.
[43] City of Mandurah v Australian Flying Corps [39].
Section 105 also requires that the appellant obtain leave to appeal. There are no rigid or exhaustive guidelines governing the grant of leave. Generally, leave to appeal should be granted if, in all the circumstances, it is in the interests of justice to do so.[44]
[44] King v Commissioner for Consumer Protection [2018] WASCA 194 [166].
The appellant initially appealed on seven grounds which were amended to six grounds at the hearing.
Ground 1 - procedural fairness
The first ground alleges a failure to accord procedural fairness by not giving the strata company an opportunity to comment upon its reasons for placing no weight upon any of the documentary evidence sought to be relied upon by the applicant in its written submissions.
The Tribunal is bound by the rules of natural justice.[45] Breach of those rules may arise where a decision is made on a different basis to that the subject of evidence and submissions.[46]
[45] State Administrative Tribunal Act, s 32.
[46] Comcare v Wuth [2018] FCAFC 13; (2018) 260 FCR 89 [25].
In its submissions, however, the strata company attempts to put to one side the position agreed between the parties and presented to the Tribunal at the hearing on 8 and 9 July 2021. The parties agreed that the question for the Tribunal was a question of law on the admitted fact that Mr Kamil was receiving money for people parking on the common property. The parties agreed that whether taking money for parking from common property breached the Act or the by-laws was a legal argument and not a factual argument, and could be resolved without the need for any evidence.[47] The attempt to introduce factual issues (such as the obstruction of contractors) was inconsistent with the agreed process.
[47] Tribunal ts 11.
The strata company cannot now complain that the Tribunal was required to hear further from it before acting on the agreed position.
I would not uphold ground 1.
Ground 2: the onus of proof
The strata company submitted that the Tribunal erred in law in stating that, if the Tribunal were to be persuaded to exercise its discretion pursuant to s 200(2)(m), the strata company must establish that in taking monies for parking on common property, Mr Kamil was in breach of the Act, by-laws, or a strata management contract.[48]
[48] Decision [22].
Similarly, the strata company submitted the Tribunal erred in stating that the strata company must establish that Mr Kamil was in breach of the Strata Titles Act, scheme by-laws or a strata management contract in installing CCTV cameras on common property.[49]
[49] Decision [70].
The error alleged in each case was to impose an onus of proof on the strata company as the applicant in the Tribunal.
Terms such as onus and standard of proof are 'borrowed from the universe of discourse which has civil litigation as its subject'.[50] Without some express statutory application, they are not applicable to decision‑making in a body such as the State Administrative Tribunal.
[50] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 282 [54].
To apply an onus of proof in Tribunal proceedings may be an error of law.
I am not, however, satisfied that the two passages complained of should properly be understood as imposing an onus of proof. The case was argued before the Tribunal as a matter of law, on admitted facts. For the Tribunal to make an order requiring a person to remedy a contravention or prevent a further contravention of the Act or by‑laws, the Tribunal must consider the conduct complained of is a contravention. There was, in my opinion, no error in the Tribunal saying that it must be satisfied that the admitted conduct was a contravention.
Ground 3: the Tribunal unreasonably gave no weight to the documentary evidence
Ground 3 alleges that the Tribunal acted unreasonably in determining to place no weight upon the documentary evidence sought to be relied upon by the parties in their written submissions. The Tribunal said:
Insofar as the parties have now sought to introduce other facts in their submissions, I have placed no weight on them in arriving at my decision as they are not based on any evidence that is before me. However, it is necessary for me to briefly set out some of those facts, to give meaning to the submissions made by the parties.[51]
[51] Decision [18].
The reasons of the Tribunal then set out what the learned member described as the 'factual matrix'.
As I understand the reasons of the Tribunal, the matters set out in the factual matrix were not material to the finding that the provisions of the Act and by-laws relied on by the strata company regarding the control, management and use of common property were not contravened by the admitted conduct. The Tribunal found:
(1)The only direct submission as to a breach of the Act or by‑laws was the allegation that Mr Kamil obstructed the contractors engaged by the strata company. That fact was not admitted and there was no evidence about it before the Tribunal.
(2)The strata company could not rely on s 91, which was concerned with the functions of a strata company and did not give rise to a finding of contravention.
(3)There was no evidence that in collecting of parking fees from invitees, Mr Kamil had used or was using the common property to the exclusion of other owners.
When the application before the Tribunal was confined to whether there was a contravention of the Act or by-laws, the factual material to which the strata company referred was not material.
The complaint in ground 3 must, however, be considered as also part of the matters raised by ground 4.
Ground 4: constructive failure to exercise jurisdiction
Ground 4 alleges that the Tribunal constructively failed to exercise its jurisdiction to resolve the disputes referred to it. The particulars of this ground largely reproduce matters dealt with in grounds 1, 2 and 3, asserting that the Tribunal imposed an onus of proof on the strata company and excluded the evidence necessary to make findings. But the ground is not only concerned with those matters.
The Tribunal held that it was not persuaded to make the orders sought by the strata company, for the reason that the strata company had not established a breach of the Act and by-laws. The sole basis for declining to exercise the power to make an order under the broader power in s 200(1) to make any order that the Tribunal considers appropriate was the way in which the strata company framed its case and the orders it sought.
Part 13, including s 200, was added by the amendments to the Strata Titles Act in 2018, replacing pt VI. Before amendment, s 83 had conferred general power on the Tribunal to make an order 'for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme'. Section 81 provided that the Tribunal may make 'an order sought by the applicant and an order made may be expressed in terms different from the order sought, so long as it does not differ in substance from the order sought'.
The discretion conferred on the Tribunal by s 200 is not so confined: the Tribunal may make any order it considers appropriate to resolve the dispute or proceeding. In addition, 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.[52]
[52] Strata Titles Act, s 199.
While the strata company sought orders under s 200(2)(m), the application in each case was for the resolution of a scheme dispute. A scheme dispute includes any dispute between scheme participants about a matter arising under the Act or the scheme by-laws. A dispute between the strata company and a member about the use of common property is a scheme dispute.
There can be no doubt that there was a dispute before the Tribunal which required it to make finding about what use was being made of the common property. The use of common property by one owner, for his own benefit, was admitted. The Tribunal left unresolved a continuing dispute about whether that was a permissible use of common property.
The failure to make findings is most pronounced in CC 1756 of 2020. The Tribunal found that the cameras were structures which may not be erected on common property unless a resolution without dissent is passed, and that there was no evidence of such a resolution. It further said that Mr Kamil did not assert there was a resolution authorising him to install the cameras. But the Tribunal still made no orders and left the matter unresolved.
Mr Kamil submitted, correctly, that the strata company had not framed its case in the Tribunal as one calling for the exercise of the broad powers in s 200(1). But each application, and the submissions filed by the strata company in the Tribunal, clearly identified the relevant conduct and the complaint that Mr Kamil was using common property for his own benefit and without the approval of the strata company.
The powers under s 199 and s 200 are discretionary, and the Tribunal was under no obligation to make any order under either section.[53] But in the circumstances of this case, the exercise of the discretion to make no order had the result that the jurisdiction to resolve a continuing dispute was not exercised.
[53] Strata Titles Act, s 202.
In my opinion, on the material before it, the Tribunal was required to consider and decide whether Mr Kamil could use common property for his own benefit in the manner he admitted. The failure to do so was a failure to exercise its jurisdiction, and an error of law.
It may have been necessary for the Tribunal to recall the parties before making orders under s 200(1), to ensure natural justice to Mr Kamil. The course taken was not consistent with the objective of the Tribunal to achieve the resolution of scheme disputes, and make decisions fairly and according to the substantial merits of the case; nor the requirement in s 32 to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
I would allow ground 4 and allow the appeal.
Ground 5: did the established facts show a breach of the Act or Regulations
In this ground, the strata company asserts an error in law in failing to find the established facts amounted to a breach of the Act or the Strata Titles (General) Regulations 2019. No provision of the regulations is identified either in the grounds or in the submissions on appeal.
In submissions, the strata company relied on an alleged breach of by‑law 2 which provides, relevantly, that an owner or occupier must not use common property in a manner that interferes unreasonably with the use and enjoyment of the common property by other owners or occupiers.
The strata company submitted that for one party to take money for parking in relation to a person parking one common property necessarily interferes with and excludes the ability of another to take money for parking in relation to the same visitor and land.
That, however, is a question of fact that requires evidence that there had been some unreasonable interference with another owner or occupier's use and enjoyment of the common property. On the agreed facts, that question of fact could not be decided.
Further, as Mr Kamil submitted, that was not the way in which the case was argued in the Tribunal. It would not be appropriate to now make the findings of fact for which the strata company contends. The matter should be resolved in the Tribunal.
I would not uphold ground 5.
Ground 6: the statutory duty under s 32(2)(b) of the State Administrative Tribunal Act 2004
Following the hearing, the parties were given leave to file further submissions regarding ground 6, in particular whether the language of s 32 is facultative or imposes obligations, the breach of which would, in itself, be an error of law. The ground raises an important question which it is not necessary to decide in order to dispose of the appeal. It should, in my opinion, await another day.
Conclusion
It is not in the interests of justice or of either party for the ongoing scheme dispute to remain unresolved. It is a proper case to grant leave to appeal.
The result is that I would grant leave to appeal and uphold ground 4. The two matters should be returned to the Tribunal for determination.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KK
Associate to the Honourable Justice Allanson
14 SEPTEMBER 2022
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