THE OWNERS OF RAFFLES WATERFRONT STRATA PLAN 48545 and TOPIC

[2016] WASAT 30

THE OWNERS OF RAFFLES WATERFRONT STRATA PLAN 48545 and TOPIC [2016] WASAT 30

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2016] WASAT 30
Act:	STRATA TITLES ACT 1985 (WA)
Case No:	CC:1001/2015	Heard:	17 AND 20 NOVEMBER 2015
Coram:	JUSTICE J C CURTHOYS (PRESIDENT) MR C RAYMOND (SENIOR MEMBER)	Delivered:	1/04/16
No of pages:	5	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	A
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Parties:	THE OWNERS OF RAFFLES WATERFRONT STRATA PLAN 48545 TERENCE EDWARD SMITH ESTHER SMITH BARRY SKINNER LESLEY SKINNER LOIS TOPIC
Catchwords:	Strata titles Lot boundaries Application for order that timber flooring installed without prior consent be removed Whether carpeting and tiling constitute common property or part of lot Whether removal of carpeting and tiling destroyed boundary of lot Whether applicant in breach of strata by­laws Good governance considerations Appropriate remedy having regard to related application by respondent for order setting aside decision of strata company and granting consent for installation of flooring
Legislation:	Strata Titles Act 1985 (WA), s 83, s 83(1), s 103G
Case References:	Nil
Orders	1. The application is dismissed.
Summary	The applicants applied under s 83, alternatively s 103G, of the Strata Titles Act 1985 (WA) for orders that the respondent remove timber flooring which had been installed without the prior consent of the applicants, as required under the by­laws.,The matter was heard concurrently with a separate application brought by the respondent under s 83 of the Strata Titles Act 1985 (WA) for orders that the decision of the strata company rejecting an application for retrospective approval of the installation of the timber flooring be set aside and that the application be approved.,As the appropriate resolution of the matter required consideration of the issues raised in both sets of proceedings, the Tribunal addressed all matters and issues between the parties.,The Tribunal concluded that the appropriate remedy was that this application, and the application brought by the respondent, should both be dismissed. A summary of the Tribunal's reasons are set out in the reasons for decision published simultaneously with these reasons in matter CC 1582 of 2014.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : STRATA TITLES ACT 1985 (WA) CITATION : THE OWNERS OF RAFFLES WATERFRONT STRATA PLAN 48545 and TOPIC [2016] WASAT 30 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)

MR C RAYMOND (SENIOR MEMBER)

HEARD : 17 AND 20 NOVEMBER 2015 DELIVERED : 1 APRIL 2016 FILE NO/S : CC 1001 of 2015 BETWEEN : THE OWNERS OF RAFFLES WATERFRONT STRATA PLAN 48545

First Applicant

TERENCE EDWARD SMITH
Second Applicant

ESTHER SMITH
Third Applicant

BARRY SKINNER
Fourth Applicant

LESLEY SKINNER
Fifth Applicant

AND

LOIS TOPIC
Respondent

Catchwords:

Strata titles - Lot boundaries - Application for order that timber flooring installed without prior consent be removed - Whether carpeting and tiling constitute common property or part of lot - Whether removal of carpeting and tiling destroyed boundary of lot - Whether applicant in breach of strata by­laws - Good governance considerations - Appropriate remedy having regard to related application by respondent for order setting aside decision of strata company and granting consent for installation of flooring

Legislation:

Strata Titles Act 1985 (WA), s 83, s 83(1), s 103G

Result:

Application dismissed

Summary of Tribunal's decision:

The applicants applied under s 83, alternatively s 103G, of the Strata Titles Act 1985 (WA) for orders that the respondent remove timber flooring which had been installed without the prior consent of the applicants, as required under the by­laws.

The matter was heard concurrently with a separate application brought by the respondent under s 83 of the Strata Titles Act 1985 (WA) for orders that the decision of the strata company rejecting an application for retrospective approval of the installation of the timber flooring be set aside and that the application be approved.
As the appropriate resolution of the matter required consideration of the issues raised in both sets of proceedings, the Tribunal addressed all matters and issues between the parties.
The Tribunal concluded that the appropriate remedy was that this application, and the application brought by the respondent, should both be dismissed. A summary of the Tribunal's reasons are set out in the reasons for decision published simultaneously with these reasons in matter CC 1582 of 2014.

Category: A

Representation:

Counsel:

First Applicant : Mr M Atkinson
Second Applicant : Mr T Smith (In Person and Acting as Agent for Mrs E Smith)
Third Applicant : Mr T Smith (In Person and Acting as Agent for Mrs E Smith)
Fourth Applicant : Mr B Skinner (In Person and Acting as Agent for Mrs L Skinner)
Fifth Applicant : Mr B Skinner (In Person and Acting as Agent for Mrs L Skinner)
Respondent : Mr G Douglas

Solicitors:

First Applicant : Atkinson Legal
Second Applicant : N/A
Third Applicant : N/A
Fourth Applicant : N/A
Fifth Applicant : N/A
Respondent : Douglas Cheveralls Lawyers

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

1 The first applicant is the body corporate, known as the Owners of Raffles Waterfront Strata Plan 48545 (the Strata Company).

2 The second to fifth applicants are the owners of lots within the strata scheme situated on the floor below the lot owned by the respondent, Mrs Lois Topic (Mrs Topic).

3 The strata company seeks an order in these proceedings under s 83(1), alternatively s 103G of the Strata Titles Act 1985 (WA) (ST Act), requiring that Mrs Topic remove timber flooring installed by her without the prior consent of the strata company as required by the by­laws. Mrs Topic admits that she is in breach of the relevant by­law. The second to fifth applicants applied to be joined in the proceedings, and were joined because they complain about noise transmission allegedly disturbing their peaceful enjoyment of their own lots.

4 Prior to the commencement of these proceedings, Mrs Topic commenced separate proceedings under matter CC 1582 of 2014, seeking orders under s 83 of the ST Act for orders that the decision of the Strata Company dated 14 August 2014, rejecting an application for retrospective approval of the installation of the timber flooring and requiring the removal of the floorboards be set aside, and that the application for that approval be approved.

5 The issues in both matters arise from exactly the same factual circumstances. It is necessary to have regard to both sets of proceedings in order to determine the appropriate resolution in respect of each matter.

6 The Tribunal considered all issues and published its reasons for decision in matter CC 1582 of 2014, which were published simultaneously with these reasons.

7 The reasons given in matter CC 1582 of 2014 should be read as if incorporated herein.

Order

8 For the reasons given in matter CC 1582 of 2014, the Tribunal will cause an order to issue in these proceedings as follows:

1. The application is dismissed.

I certify that this and the preceding [8] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J C CURTHOYS, PRESIDENT