The Owners of Elizabeth Gardens Bunbury - Strata Plan 25169 and Croft and Anor
[2007] WASAT 58
•28 FEBRUARY 2007
THE OWNERS OF ELIZABETH GARDENS BUNBURY - STRATA PLAN 25169 and CROFT & ANOR [2007] WASAT 58
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 58 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | CC:1150/2006 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 27/02/07 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application partially successful | ||
| B | |||
| PDF Version |
| Parties: | THE OWNERS OF ELIZABETH GARDENS BUNBURY - STRATA PLAN 25169 EDWARD CROFT ALAN CROFT |
Catchwords: | Strata titles Restriction on use of parcel Breach established Whether any effective remedy |
Legislation: | Strata Titles Act 1985 (WA), s 6, s 6(1), s 6(2), s 61, s 81(1), s 83, s 83(1) |
Case References: | R v Kakelo [1923] 2 KB 793 |
Orders | On the application determined by Senior Member Clive Raymond on 28 February 2007, it is ordered that:,1. The second respondent must not occupy Lot 25 on Strata Plan 25169 prior to him attaining the age of 55 years or retiring from full time employment and must take all necessary steps to ensure that:,(a) his spouse does not do so at any time prior to the second respondent attaining the age of 55 years or retiring from full time employment; and,(b) the second respondent's infant daughter does not reside within the lot.,2. The application is otherwise dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : THE OWNERS OF ELIZABETH GARDENS BUNBURY - STRATA PLAN 25169 and CROFT & ANOR [2007] WASAT 58 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 28 FEBRUARY 2007 FILE NO/S : CC 1150 of 2006 BETWEEN : THE OWNERS OF ELIZABETH GARDENS BUNBURY - STRATA PLAN 25169
- Applicant
AND
EDWARD CROFT
First Respondent
ALAN CROFT
Second Respondent
Catchwords:
Strata titles - Restriction on use of parcel - Breach established - Whether any effective remedy
Legislation:
Strata Titles Act 1985 (WA), s 6, s 6(1), s 6(2), s 61, s 81(1), s 83, s 83(1)
(Page 2)
Result:
Application partially successful
Category: B
Representation:
Counsel:
Applicant : Ms I Depassey and Mr D Russell (Acting as Agents)
First Respondent : Self-represented
Second Respondent : N/A
Solicitors:
Applicant : N/A
First Respondent : Self-represented
Second Respondent : N/A
Case(s) referred to in decision(s):
R v Kakelo [1923] 2 KB 793
(Page 3)
Summary of Tribunal's decision
1 The applicant applied under s 83 of the Strata Titles Act 1985 (WA) for orders enforcing the terms of a use restriction endorsed on the strata plan pursuant to s 6 of the Strata Titles Act 1985 (WA).
2 The first respondent was cited in his capacity as litigation guardian of Iris Croft, an elderly person of approximately 85 years of age, suffering from Alzheimer's disease. The Tribunal declined to make any order against the first respondent because the order would not be capable of being enforced. Although the second respondent and his family had vacated the lot, the Tribunal considered it appropriate to make orders which prevented their returning to the lot.
The application
3 On 26 July 2006 the applicant applied for orders under s 83(1) of the Strata Titles Act 1985 (WA) (ST Act) for orders against Mrs Iris Croft, as first respondent, and against Alan Croft, as second respondent.
4 The orders sought were expressed in the following terms:
"That the First Respondent –
(a) take all reasonable steps to have the Second Respondent, his wife and their infant daughter vacate Lot 25 on Strata Plan 25169, and
(b) thereafter, not permit any person to occupy the Lot contrary to the restriction to use endorsed on the Strata Plan pursuant to section 6 of the Strata Titles Act.
That within 21 days after the making of this Order, –
(a) the Second Respondent, his wife and their infant daughter vacate Lot 25 on Strata Plan 25169, and
(b) thereafter, not occupy the Lot contrary to the restriction to use endorsed on the Strata Plan pursuant to section 6 of the Strata Titles Act."
5 The grounds for the application and the supporting documents establish that Iris Croft is the registered proprietor of Lot 25 on Strata
(Page 4)
- Plan 25169, that she is in occupation of the property which is known as Unit 24 Elizabeth Gardens, Halsey Street, Bunbury.
6 The following facts are alleged and as they are not disputed are accepted as true by the Tribunal. Iris Croft is the mother of Alan Croft. During or about January 2006, Alan Croft took up residence in the lot and was later joined by his wife and infant daughter. About that time a Miss Rachel Donaldson, Mrs Croft's adult granddaughter, took up residence. Consequently, there were then four adults plus, occasionally, Miss Donaldson's boyfriend, and an infant living in the unit, which resulted in a congestion of vehicles being parked on the common property driveways and vehicles being driven over common property lawns to get around obstructing vehicles. Mr Denis Russell, the applicant's strata manager, spoke to both Mrs Iris Croft and Mr Alan Croft by telephone but neither were inclined to remedy the situation. It is alleged that Mr Alan Croft became abusive towards the secretary of the applicant's Council. The Council resolved to write to Iris and Alan Croft and the correspondence, copies of which were attached to the application, resulted in Mr Alan Croft making an abusive telephone call to Mr Russell. Miss Donaldson vacated the premises.
7 Attached to the application is a letter dated 21 June 2006 received from Eddy Croft, who, as related further, was subsequently substituted for Mrs Iris Croft, as first respondent, in his capacity as her litigation guardian (Edward Croft). In this letter, Edward Croft was critical of the applicant because he stated that his mother, Iris Croft, is 85 years old and (was then) in the early stages of Alzheimer's disease and was in need of care. He also mentioned that his brother, a reference to Alan Croft, the second respondent, is unemployed (and was then) 55 years of age. He further informed the applicant that Alan Croft would be leaving the premises in the following week and "should not be returning".
8 A directions hearing was heard on 10 August 2006 which was attended by Miss Irene Depassey, the secretary of the Council of the applicant, and Mr Denis Russell, the applicant's strata manager, both on behalf of the applicant. There was no appearance for either respondent but the Tribunal was informed that service had been effected on both Iris Croft and Alan Croft. The Tribunal issued directions affording the respondents an opportunity to provide any written submissions which they wished the Tribunal to take into account in determining the proceedings.
9 On 11 October 2006, the Tribunal received a facsimile letter from Edward Croft, dated 25 September 2006. Mr Edward Croft advised that
(Page 5)
- he had power of attorney to act on behalf of his mother. The facsimile confirmed that his mother, Iris Croft, has Alzheimer's disease and has been diagnosed as requiring "high care", that an application was being made for her to be re-located to a nursing home whereafter her unit would be sold. In relation to his brother, the facsimile advised that Alan Croft was then in Indonesia and had been for about 6 to 7 weeks. Further, he stated that Alan Croft could stay only 12 weeks in Indonesia before having to return to Australia but had been told that he could not return to stay with Iris Croft, due to her health and the effect he has on her.
10 The matter was set down for a further directions hearing on 9 November 2006. In response to a notice of set down, Edward Croft advised the Tribunal by facsimile letter dated and received on 1 November 2006 that he would be in New Zealand on the day of the hearing. The facsimile contained further details of his mother's state of health and expressed concern about the effect of any notices being served on her.
11 As a result of this communication, the directions hearing was adjourned and the Executive Officer of the Tribunal wrote to Edward Croft inviting him to apply to be appointed as litigation guardian for Iris Croft, so that she need not be further involved in the proceedings. That application was duly made and on 30 November 2006, the Tribunal ordered that Edward Croft be substituted as first respondent in that capacity. The Tribunal further ordered that the matter be determined on the documents.
The parcel
12 Strata Plan 25169 was registered on 29 October 1993. At that time, the strata plan comprised of 15 residential brick units being Lots 1 to 15 and a further Lot 16, which was undeveloped. On 14 October 1994, a strata plan of subdivision was registered which subdivided Lot 16 into a further 12 lots being Lots 17 to 28.
13 Both the original strata plan and the strata plan of subdivision contained an endorsement pursuant to s 6(1) of the ST Act in the following terms:
"The use to which each of the residential lots on this strata plan may be put is restricted pursuant to section 6(1) of Act 33 of 1985 to use as a residence by persons who:
(Page 6)
- a) have attained the age of 55 years or have retired from full time employment; or
b) are or were the spouse of such a person."
Considerations
14 It is not appropriate for the Tribunal to issue orders which are ineffective and which cannot be properly enforced. Neither Iris Croft, nor Edward Croft, who resides in Sydney, are in a position to exercise day to day control over the lot. The applicant has acted in an entirely proper way in bringing the application and in discharging its obligations under the ST Act. Nevertheless, no useful purpose could be served by granting an order as sought against the first respondent and the Tribunal declines to do so.
15 In relation to the second respondent, the evidence establishes that he and his family have vacated the lot. Nevertheless, there is some risk that they may return. Although there was an assertion made that the second respondent was over the age of 55 years, no evidence was provided to support that assertion. Further, the second respondent had never himself made any assertion to like effect in his dealings with the representatives of the applicant. The application asserts, and the Tribunal finds, there being no suggestion to the contrary, that a letter dated 14 June 2006 was served on the second respondent which specifically challenged his right to occupy the lot on the basis that the restriction applied to him. The only response from Mr Alan Croft was to abuse Mr Russell on the telephone. No assertion was made by Mr Alan Croft that he had attained the age of 55 years, or that he had retired from full time employment.
16 It is accepted that in circumstances in which evidence is peculiarly within the knowledge of one party, that all evidence is to be weighed according to the proof which it was in the power of one side to produce, and in the power of the other to have contradicted: R v Kakelo [1923] 2 KB 793 at [795] and the further authorities referred to in Heydon, JD Cross on Evidence, 6th Australian ed Butterworths, Sydney, 2000.
17 Weighing all the information before the Tribunal in accordance with the above principles, the Tribunal finds that the use restriction endorsed on the strata plan applied to the second respondent, his wife and infant child.
18 While the second respondent has vacated the premises, the applicant has a legitimate concern to ensure that he and his family do not return,
(Page 7)
- something which Mr Edward Croft made plain he could not guarantee. Section 6(1) of the ST Act permits the restriction of use as endorsed on the strata plan. Section 6(2) provides that where such a restriction has been endorsed, a proprietor, occupier or other resident of any lot that is part of the parcel shall not use, or permit to be used, the partial or part of the parcel in any manner that contravenes the section. Under s 83 of the ST Act, the Tribunal may make an order for the settlement of a dispute applied for by, relevantly, a strata company, against an occupier or other resident of a lot, in respect to the scheme.
19 In these circumstances, the Tribunal has power to make an order against the respondent and by virtue of s 81(1) of the ST Act may express the order in terms different from the order sought, so long as it does not differ in substance from the order sought.
Order
20 For the above reasons, the Tribunal orders as follows.
1. The second respondent must not occupy Lot 25 on Strata Plan 25169 prior to him attaining the age of 55 years or retiring from full time employment and must take all necessary steps to ensure that:
(a) his spouse does not do so at any time prior to the second respondent attaining the age of 55 years or retiring from full time employment; and
(b) the second respondent's infant daughter does not reside within the lot.
2. The application is otherwise dismissed.
I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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