The Owners of Rosneath Farm - Strata Plan 35452 and Clark and Ors
[2007] WASAT 115
•18 MAY 2007
THE OWNERS OF ROSNEATH FARM - STRATA PLAN 35452 and CLARK & ORS [2007] WASAT 115
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 115 | |
| STRATA TITLES ACT 1985 (WA) | |||
| Case No: | STR:111/2004 | 6 FEBRUARY 2007 DECISION RESERVED WITH EFFECT: 3 MARCH 2007 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 18/05/07 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application refused | ||
| B | |||
| PDF Version |
| Parties: | THE OWNERS OF ROSNEATH FARM - STRATA PLAN 35452 RICHARD CLARK WARWICK HAROLD MITFORD ROWELL GILLIAN ROWELL WESLEY IAN CHARLES NASH LEE FRANCES NASH AMRIT LOUISE WORK KENDRICK GARY KENDRICK JANE WATTS GLENN NORMAN WATTS GRAHAM BENSTEAD ELAI MAZZOLENI RICHARD ROWELL CATHERINE JOY McGEACHIE MARJORIE WEINERT JAN IRVINE |
Catchwords: | Application by first respondent to dismiss proceedings – Whether proceedings authorised – Whether levy of contributions properly raised – Whether nature of dispute within jurisdiction |
Legislation: | State Administrative Tribunal Act 2004 (WA), s 47, s 167 State Administrative Tribunal Regulations 2004 (WA), reg 28 Strata Titles Act 1985 (WA), s 36, s 36(1)(c), s 36(4)(c), s 42B, s 45(2), s 79, s 83, s 83(1), s 85 |
Case References: | Bell Resources Holdings Pty Ltd v Commissioner for ACT Revenue Collections (1990) 93 ALR 354 Clark and The Owners of Rosneath Farm – Strata Plan 35452 & Ors [2007] WASAT 85 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Ho Tung v Man On Insurance Co Ltd [1902] AC 232 Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 Phosphate of Lime Co Ltd v Green (1871) LR7CP 43 Rowell v Clark & Anor [2006] WASC 159 Wardley Australia Ltd and Another v The State of Western Australia (1992) 175 CLR 514 |
Orders | 1. The 1st respondent's application that the proceedings be dismissed is refused. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : THE OWNERS OF ROSNEATH FARM - STRATA PLAN 35452 and CLARK & ORS [2007] WASAT 115 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : 6 FEBRUARY 2007
- DECISION RESERVED WITH EFFECT:
3 MARCH 2007
- Applicant
AND
RICHARD CLARK
1st Respondent
WARWICK HAROLD MITFORD ROWELL
GILLIAN ROWELL
WESLEY IAN CHARLES NASH
LEE FRANCES NASH
AMRIT LOUISE WORK KENDRICK
GARY KENDRICK
JANE WATTS
GLENN NORMAN WATTS
GRAHAM BENSTEAD
ELAI MAZZOLENI
RICHARD ROWELL
CATHERINE JOY McGEACHIE
- MARJORIE WEINERT
JAN IRVINE
2nd to 15th Respondents
Catchwords:
Application by first respondent to dismiss proceedings – Whether proceedings authorised – Whether levy of contributions properly raised – Whether nature of dispute within jurisdiction
Legislation:
State Administrative Tribunal Act 2004 (WA), s 47, s 167
State Administrative Tribunal Regulations 2004 (WA), reg 28
Strata Titles Act 1985 (WA), s 36, s 36(1)(c), s 36(4)(c), s 42B, s 45(2), s 79, s 83, s 83(1), s 85
Result:
Application refused
Category: B
Representation:
Counsel:
Applicant : N/A
1st Respondent : Mr D Beere
2nd to 15th Respondents : Mr G McIntyre SC
Solicitors:
Applicant : N/A
1st Respondent : Beere & Meyer
2nd to 15th Respondents : Christopher Garvey
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Case(s) referred to in decision(s):
Bell Resources Holdings Pty Ltd v Commissioner for ACT Revenue Collections (1990) 93 ALR 354
Clark and The Owners of Rosneath Farm – Strata Plan 35452 & Ors [2007] WASAT 85
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Ho Tung v Man On Insurance Co Ltd [1902] AC 232
Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692
Phosphate of Lime Co Ltd v Green (1871) LR7CP 43
Rowell v Clark & Anor [2006] WASC 159
Wardley Australia Ltd and Another v The State of Western Australia (1992) 175 CLR 514
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Summary of Tribunal's decision
1 The 1st respondent applied for orders that the proceedings be dismissed.
2 The Tribunal considered each of the grounds relied upon. In relation to the first ground, reliance was placed upon the acquiescence of all proprietors, as constituting the agreement to raise and pay contributions by way of a levy. The Tribunal referred to authority to the effect that summary relief should not be granted prior to final hearing except in the clearest cases.
3 In relation to the second ground, the Tribunal noted, without finally deciding, that on the evidence furnished, the members of the council were of the view that the proceedings were to be commenced, and if there was any doubt as to the authority given to the chairman and treasurer, it appeared that their actions had been ratified. The Tribunal observed that there is no statutory requirement for an application to the Tribunal to be made under seal.
4 In relation to the third ground, the Tribunal concluded that the order sought was in the nature of a declaratory order and could not be construed as an order seeking enforcement. It was concluded that the Tribunal had power to determine the underlying dispute which existed between the parties and make an order in settlement of that dispute pursuant to s 83 of the Strata Titles Act1985 (WA). The application to dismiss the proceedings was refused.
Introduction
5 On 24 September 2004, the Strata Titles Referee received an application from the applicant seeking an order that the 1st respondent, the registered proprietor of Lot 25 within the strata plan, "pay and continue to pay on or before the due date the levies due on the said lot from and including 11 October 2003" and that he bear any costs incurred. The Strata Titles Referee called for submissions from all lot proprietors, either supporting or opposing the application, and those submissions were duly received. By virtue of s 167 of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the matter was transferred to the State Administrative Tribunal on 1 January 2005. In accordance with the transitional provisions and reg 28 of the State Administrative Tribunal Regulations 2004 (WA), the matter is taken to have commenced in the
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- Tribunal and the Tribunal was entitled to have regard to any record of the former adjudicator.
6 On 24 February 2005, the Tribunal determined the matter and issued its reasons for decision and an order dismissing the application. That decision was set aside by the Supreme Court in Rowell v Clark & Anor [2006] WASC 159 on 4 August 2006 on procedural fairness grounds. The appellant in those proceedings had not been aware of some of the written submissions received by the Strata Titles Referee which were taken into account and influenced the decision of the Tribunal. The matter was remitted for determination by the Tribunal differently constituted.
The application to dismiss
7 The 1st respondent has applied for the application to be dismissed on three grounds.
1) That no resolution has ever been passed by the applicant raising any levy against Lot 25 during the relevant period from 11 October 2003 until the date of the application. The application is dated 22 September 2004.
2) That there is no resolution of the "Strata Body" authorising the commencement of any legal proceedings.
3) That the Tribunal does not have power to make an order in the terms sought.
8 The power to dismiss is provided under s 47 of the SAT Act. Although not clearly identified by the 1st respondent, it appears from the grounds relied upon that the power is sought to be exercised on the basis that the proceedings are either misconceived or lacking in substance, or are an abuse of process.
9 The application for dismissal was heard on 6 February 2007. At that hearing, the 2nd to 15th respondents were joined in the proceedings. Prior to that date, they were parties who had made submissions, having been notified and provided with the opportunity to do so pursuant to s 79 of the Strata Titles Act1985 (WA) (ST Act) as it stood at the time of the making of the application in September 2005. At the conclusion of the hearing on 6 February 2007, the Tribunal issued directions providing the 2nd to the 15th respondents with an opportunity to provide documentary evidence to establish that the council of the applicant had authorised the commencement of the proceedings and providing the 1st respondent with an opportunity to file any further affidavit evidence on which he wished to
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- rely. The Tribunal also ordered that the application to dismiss the proceedings be reserved, subject to compliance with the above orders, with effect from 3 March 2007.
10 The 2nd to 15th respondents have filed affidavit evidence from the 3rd respondent, Gillian Rowell; the 4th respondent, Wesley Ian Charles Nash; the 10th respondent, Graham Benstead; the 12th respondent, Richard Rowell; the 13th respondent, Catherine Joy McGeachie and the 15th respondent, Jan Irvine, all of whom have been elected councillors of the applicant at various times.
11 It should be noted that as a result of the dispute that exists between the parties, it is not possible for the applicant to play any further active part in the proceedings. The 1st respondent has effective control of the strata company because he holds in excess of 80% of the total unit entitlement. The 2nd to 15th respondents all support the application.
The grounds for dismissal
1) The first ground: that no resolution has ever been passed by the applicant raising any levy against Lot 25 during the period from 11 October 2003 to the date of the application on 22 September 2004
12 This is not disputed by the 2nd to 15th respondents. They rely on the proposition that proprietors have accepted the obligation to the strata company by acquiescence relying on Phosphate of Lime Co Ltd v Green (1871) LR7CP 43 at 56 – 57; Bell Resources Holdings Pty Ltd v Commissioner for ACT Revenue Collections (1990) 93 ALR 354 at 369; Ho Tung v Man On Insurance Co Ltd [1902] AC 232 at 236; Morgan v 45 Flers Avenue Pty Ltd (1986) 10 ACLR 692 at 702.
13 The issue of whether it was necessary to have a formal resolution was considered by the Tribunal in related proceedings in Clark and The Owners of Rosneath Farm – Strata Plan 35452 & Ors [2007] WASAT 85. Other issues were also determined in those proceedings which are potentially determinative of these proceedings. Because of that potential, this matter was brought on for a further directions hearing on 3 May 2007 to ascertain the attitude of the parties to the proceedings. Whether the issues are exactly the same and whether or not an issue estoppel operates is a matter still to be determined in these proceedings, but it is understood that the 2nd to 15th respondents resist that possibility. It is for that reason that the Tribunal was informed that all respondents, other than Mr Warwick Rowell, would require an opportunity to inspect the file to ascertain whether there is more evidence
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- which could be put before the Tribunal and which might result in the same, or similar, issues being determined differently in these proceedings. Directions were issued at the hearing on 3 May 2007 to allow inspection of any submissions filed by notified persons and for the filing and service of any responses thereto.
14 It is trite that summary relief should not be granted in interlocutory proceedings prior to a final hearing except in the clearest of cases: see Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99; Wardley Australia Ltd and Another v The State of Western Australia (1992) 175 CLR 514 at 533. While it seems unlikely that any further evidence will relate to this issue, the Tribunal cannot be certain of that, and unless it is established that an issue estoppel operates, the proposition that a final resolution was not necessary is an arguable issue. In these circumstances, the Tribunal declines to uphold the first ground relied upon by the 1st respondent.
2) Second ground: whether the commencement of legal proceedings was not properly authorised
15 The evidence establishes the common seal of the strata company was not affixed to the application by authority of the strata council previously given, as required by Sch 1 by-law 15, which operates by reason that the registered management statement does not amend or repeal the by-law. That notwithstanding, the evidence filed establishes that the issue was before the council at a number of council meetings prior to the commencement of proceedings and that the understanding of councillors as at the time of the last meeting, immediately prior to commencement of the proceedings, was that proceedings would be instituted. Each of the opponents to the affidavits referred to above say as much, except for Catherine Joy McGeachie, who was not present. Correspondence with the 1st respondent was tabled, in which it was made plain that in the absence of a suitable response, the strata company would immediately apply to the Strata Titles Referee to require payment of the relevant levies. Also tabled was correspondence received from the Strata Titles Referee, enclosing the necessary application form for completion.
16 There is nothing in the ST Act or the SAT Act which requires that an application by a strata company must be made under seal. Section 45(2) of the ST Act expressly provides that a corporation may authorise an individual to perform on its behalf any function conferred by or under the ST Act on the corporation as chairman, secretary or treasurer, or as a member or alternate member of the council. If there is uncertainty as to
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- the authority of the chairman and treasurer, who signed the application, to do so, that was arguably ratified by the subsequent conduct of the applicant in the continuing of the proceedings.
17 I make no final findings on these issues, but as they are arguable issues which are raised, I decline to dismiss the proceedings on this ground.
3) Third ground: whether the Tribunal has the power to make an order as sought
18 In the Tribunal's original decision, which was set aside, the presiding member identified the very issue raised under this ground. The 1st respondent submits that under s 36(4)(c) of the ST Act, any proceeding for the payment of a contribution levied under s 36 should be the subject of debt recovery proceedings in a court of competent jurisdiction. However, under s 83(1) of the ST Act, the former Strata Titles Referee, and now the Tribunal, may make an order in settlement of a dispute. In effect, an order in the terms as sought must be regarded as being in the nature of a declaratory order for it to be within jurisdiction. If it is to be construed as an order that the 1st respondent pay a sum of money, as an enforcement of the 1st respondent's obligation, I accept that the Tribunal does not have the power to make such an order.
19 In the original decision, the Tribunal recognised that the parties were in dispute over the purported exercise by the strata company of its power under s 36(1)(c) to raise amounts by levying contributions on proprietors. Essential to that dispute was a determination of the effect of by-law 19, and whether it constituted a by-law permitted under s 42B providing for a method of assessing contributions to be levied on proprietors under s 36 otherwise than in proportion to the unit entitlement of their respective lots. It was then concluded that the Tribunal has jurisdiction to make an order that settles that contentious issue.
20 In my view, the order sought is properly construed as an order in the nature of a declaratory order. It does not seek payment of any particular levy. It requires an order that the respondent "pay and continue to pay on or before [the] due date the levies due on the said lot from and including 11 October 2003". The order does not limit itself to a levy raised as at the date of the application. It requires a determination that the first respondent is liable for levies due on Lot 25 whenever raised subsequent to 11 October 2003.
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21 If I am wrong in my reading of the order, it is at the very least ambiguous, and then should be given that construction which will uphold the validity of the order if made in those terms. In any event, I am fortified in my view by the statement made by Justice Templeman in the Supreme Court appeal proceedings in which his Honour concurred in the Tribunal's approach stating that the member" (very sensibly in my view) proceeded on the basis that it would be appropriate to determine the underlying dispute: whether the strata company was empowered to levy Mr Clark in relation to Lot 25".
22 I decline to dismiss the proceedings on this ground.
23 In my view, the grounds relied upon do not establish that the proceedings are either misconceived, lacking in substance or an abuse of process.
Order
24 For the above reasons, I order as follows:
1. The 1st respondent's application that the proceedings be dismissed is refused.
I certify that this and the preceding [24] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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