The Owners of Adelphi Centre On Strata Plan 10934 and Di Latte and Anor

[2006] WASAT 36

THE OWNERS OF ADELPHI CENTRE ON STRATA PLAN 10934 and DI LATTE & ANOR [2006] WASAT 36

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 36
Act:	STRATA TITLES ACT 1985 (WA)
Case No:	CC:2892/2005	Heard:	DETERMINED ON THE PAPERS
Coram:	DR B DE VILLIERS (MEMBER)	Delivered:	16/02/06
No of pages:	7	Judgment Part:	1 of 1
Result:	The application succeeds
Category:	B
PDF Version

Parties:	THE OWNERS OF ADELPHI CENTRE ON STRATA PLAN 10934 SALVATORE DI LATTE SAM LUU
Catchwords:	Strata titles – Use and repair of common property – Conduct of proceedings causing a disadvantage – Failure to comply with an order of the Tribunal
Legislation:	State Administrative Tribunal Act 2004 (WA), s 48, s 48(1), s 48(2)(b), s 95, s 95(1) Strata Titles Act 1985 (WA), s 17(1), s 35(1)(b), s 42(8), 83(1)
Case References:	Nil Nil
Orders	1. The application succeeds.,2. Unless the Owners give written permission for additional time to comply with the orders, Mr Di Latte must within 30 days from the date of these orders –, a) remove the commercial washing machine and driers and associated equipment from the common laundry area;, b) cease to use the storeroom within the laundry to the exclusion of others, remove all personal items and shelving and make good at their cost any damage caused;, c) remove the ice storing machine from the common property;, d) remove the pylon advertising sign from the common property and made good at their cost any damage caused;, e) close the grease trap on the common property and make good at their cost any damage caused;, f) remove wooden barrels from the common property; and, g) remove the exhaust fan and compressors from under the common property stairs.,3. The Tribunal declares that s 95(1) of the State Administrative Tribunal Act 2004 (WA) applies and that failure by Mr Di Latte to comply with these orders may attract a penalty of up to $10 000.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : THE OWNERS OF ADELPHI CENTRE ON STRATA PLAN 10934 and DI LATTE & ANOR [2006] WASAT 36 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 16 FEBRUARY 2006 FILE NO/S : CC 2892 of 2005 BETWEEN : THE OWNERS OF ADELPHI CENTRE ON STRATA PLAN 10934

Applicant

AND

SALVATORE DI LATTE
SAM LUU
Respondents

Catchwords:

Strata titles – Use and repair of common property – Conduct of proceedings causing a disadvantage – Failure to comply with an order of the Tribunal

Legislation:

State Administrative Tribunal Act 2004 (WA), s 48, s 48(1), s 48(2)(b), s 95, s 95(1)

Strata Titles Act 1985 (WA), s 17(1), s 35(1)(b), s 42(8), 83(1)

(Page 2)

</LR>

Result:

The application succeeds

Category: B

Representation:

Counsel:

Applicant : Mark Atkinson
Respondents : Self­represented

Solicitors:

Applicant : Atkinson and Associates
Respondents : Self-represented

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

Nil

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The application is brought by the Owners of Adelphi Centre (the Owners) for orders to compel Mr Di Latte and Mr Luu to remove equipment from common property and to make good any damage that has been caused.

2 Mr Di Latte and Mr Luu failed to respond to the application and contentions contained therein. The State Administrative Tribunal accepted the evidence of the Owners that Mr Di Latte has over a period of time used parts of common property in a manner that contravenes the Strata Titles Act 1985 (WA).

3 The application succeeds and orders are made.

Background

4 The Owners of Adelphi Centre on Strata Plan 10934 (the Owners) lodged an application on 2 June 2005 pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (ST Act) to seek orders to compel Mr Di Latte to remove certain equipment, machinery and material from the common property, and for him to make good damage caused to the common property by his purported unauthorised installation and placing of same.

5 The Owners joined Mr Luu to the application as respondent on grounds that he has acquired Mr Di Latte's interest or part thereof in the common property.

6 At the directions hearing held on 24 November 2005, Mr Di Latte indicated that his interests had not passed to Mr Luu. He informed the State Administrative Tribunal (the Tribunal) that an agreement had been signed but that settlement had not yet occurred. Mr Atkinson, acting on behalf of the Owners, contended that the fact that Mr Luu had entered into an agreement to acquire Mr Di Latte's interest is sufficient to bring him (Mr Luu) within the ambit of s 83(1) of the ST Act as "person having an interest in a lot". Mr Di Latte also indicated at the same directions hearing that if the interest had passed to Mr Luu, the Owners would not pursue the application as they believe an amicable arrangement can be reached with him.

7 The Tribunal has not received any further update from Mr Di Latte to indicate that his interest in the matter had passed to Mr Luu. We have

(Page 4)

also not received any submission from Mr Luu to the effect that he should not have been joined as a respondent to these proceedings. The Tribunal is satisfied that proper service of the application was effected on both the respondents.

8 The Tribunal therefore proceeds on the basis that both Mr Di Latte and Mr Luu remain parties to the proceedings. However, on the basis of the available evidence as per the certificate of title that accompanied the application, any orders made by the Tribunal will be directed at Mr Di Latte for compliance.

Nature of Dispute

9 The dispute arises from purported actions Mr Di Latte had taken in regard to the common property without obtaining the necessary authorisation from the Owners or without a by-law being registered to grant him exclusive use of areas of common property.

10 It is alleged that as a result of his actions, some areas of common property have become de facto exclusive use for Mr Di Latte, and that he uses other parts of common property in disregard for the rights of other proprietors. The Owners provided the Tribunal with minutes of meetings and photographs in support of their application of the alleged unauthorised use of the common property.

11 According to the Owners Mr Di Latte is not authorised to use the common property for the following purposes:

• Commercial washing machine and driers and associated equipment in the common laundry area;

• Use of the storeroom within the laundry area to the exclusion of other proprietors;

• Installing an ice storing machine on common property;

• Erecting a pylon sign for advertising on the common property driveway;

• Digging a grease trap on the common property;

• Placing wooden barrels on the common property; or

• Installing an exhaust fan and compressors under the common property stairs.

(Page 5)

12 The Tribunal made programming orders at the directions hearing held on 24 November 2005 to enable the parties to settle the dispute by way of consent orders. The parties however failed to reach agreement.

13 In the absence of a settlement the Tribunal made detailed programming orders at the directions hearing held on 8 December 2005 for the application to be determined. Mr Di Latte was present at these directions hearings. The respondents were required to make submissions, if any, in response to the application by not later than 4 January 2006 and the applicants were to reply to such submissions, if any, by not later than 25 January 2006. Orders were made for the application to be determined on the basis of the documents.

14 Neither of the respondents made submissions in response to the application or the contentions made therein.

Consideration

15 The Tribunal is empowered by s 48(2)(b) of the State Administrative Act 2004 (WA) (SAT Act) to determine proceedings in favour of the Owners and to make appropriate orders if the Tribunal believes the actions of the respondents are causing an unnecessary disadvantage to the Owners. Section 48(1) lists examples of conduct that may be regarded as possible justification for the Tribunal forming the view that orders should be made in favour of the Owners.

16 The Tribunal finds that the conduct of the respondents in these proceedings had been such that orders pursuant to s 48 are justified.

17 The evidence shows that the Owners have attempted over a period of at least a year, to secure the cooperation of Mr Di Latte in regard to his unauthorised use of common property. The lack of action by Mr Di Latte to comply with the directives of the Owners and the failure of both respondents to reply to the application, justify the Tribunal's conclusion that the respondents have acted in bad faith and in disregard of orders made by the Tribunal. It appears as if Mr Di Latte has a commercial interest to prolong the proceedings to enable him to continue to derive financial gain from the activities the subject of the application.

18 The respondents also failed to comply with orders of the Tribunal in regard to the lodgement of a response to the application by 4 January 2006. No excuse was provided for the lack of compliance and no adjournment of proceedings sought. Mr Di Latte was present at the directions hearings and he had ample opportunity to raise issues or put

(Page 6)

questions if he did not understand any of the proceedings or orders. Mr Luu had received personal service of the application.

19 The Tribunal accepts the evidence of unauthorised use of common property by the respondents.

20 Section 17(1) of the ST Act gives each proprietor a share in common property in proportion to the unit entitlement of the respective lots. Section 35(1)(b) of the ST Act requires that common property be controlled and managed for the benefit of all the proprietors. No by-law to grant exclusive use of any part of common property has been registered pursuant to s 42(8) of the ST Act in favour of the respondents. Schedule 1 by-law 1(2) requires from a proprietor to use and enjoy common property in a manner as to not unreasonably interfere with the use and enjoyment thereof by other proprietors. Schedule 2 by-law 2 places an obligation on a proprietor not to obstruct the lawful use of common property by any other person. The activities of Mr Di Latte are in breach of each of these provisions of the ST Act.

21 The actions by Mr Di Latte are in reckless disregard for the ST Act, the rights of other proprietors and the authority of the Owners to manage and control the common property.

22 It is therefore appropriate for the application to succeed.

23 It is also appropriate for the orders to refer to s 95 of the SAT Act that makes it an offence to fail to comply with an order of the Tribunal. Such an offence can attract a penalty of up to $10 000.

Orders

1. The application succeeds.

2. Unless the Owners give written permission for additional time to comply with the orders, Mr Di Latte must within 30 days from the date of these orders –


a) remove the commercial washing machine and driers and associated equipment from the common laundry area;

b) cease to use the storeroom within the laundry to the exclusion of others, remove all personal items and shelving and make good at their cost any damage caused;

c) remove the ice storing machine from the common property;

(Page 7)

d) remove the pylon advertising sign from the common property and made good at their cost any damage caused;

e) close the grease trap on the common property and make good at their cost any damage caused;

f) remove wooden barrels from the common property; and

g) remove the exhaust fan and compressors from under the common property stairs.

3. The Tribunal declares that s 95(1) of the State Administrative Tribunal Act 2004 (WA) applies and that failure by Mr Di Latte to comply with these orders may attract a penalty of up to $10 000.


I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.




___________________________________

DR B DE VILLIERS, MEMBER