THE OWNERS OF STRATA PLAN 50800 and MARSHALL

[2013] WASAT 91

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   THE OWNERS OF STRATA PLAN 50800 and MARSHALL [2013] WASAT 91

MEMBER:   MS NATASHA OWEN-CONWAY (MEMBER)

HEARD:   12 JUNE 2013

DELIVERED          :   19 JUNE 2013

FILE NO/S:   CC 460 of 2013

BETWEEN:   THE OWNERS OF STRATA PLAN 50800

Applicant

AND

JAMIE MARSHALL
TIMOTHY MARSHALL
Respondents

Catchwords:

Strata titles ­ Obstruction of common property ­ Breach of Sch 2 by­laws ­ Turns on own facts

Legislation:

Strata Titles Act 1985 (WA), s 81, s 81(3), s 81(4), s 83, s 83(1), s 84(2), Sch 1 By­law 28, Sch 2 By-law 2, By­law 15, By­law 15(2)

Result:

Order granted

Summary of Tribunal's decision:

The applicant authorised the commencement of proceedings against the respondents for breach of the Sch 2 by-laws.  The applicant's strata manager had observed that the respondents had stacked fencing on pallets on the common property without any authorisation or approval from the applicant or the council of owners of the applicant.  The applicant, through its strata manager, requested that the respondents remove the fencing, as it was in breach of the by­laws and caused an obstruction to the use of the common property.  The respondents did not remove the stacked fencing.  The respondents did not appear in the Tribunal.  Orders were made against the respondents to remove the fencing from the common property.

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

Respondents                 :     No appearance

Solicitors:

Applicant:     N/A

Respondents                 :     N/A

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Introduction

1. The application was made on 16 April 2013 by the Owners of Strata Plan 50800 (represented by the applicant's strata manager) pursuant to s 83(1) of the Strata Titles Act 1985 (WA) (ST Act) against Mr James Marshall and Mr Timothy Marshall, the joint owners and occupiers of Unit 19, No 25 Turnbull Road, Neerabup in the Shire of Wanneroo (Unit 19). The dispute surrounds an allegation that Messrs Marshall, as the owners and occupiers of Unit 19, are in breach of the standard by-laws, Sch 2 By­law 2 'Obstruction of common property' and special By­law 15(2) contained in the management statement dated 14 May 2007, registered on the strata plan.

The by-laws

1. Schedule 2 By­law 15 is headed 'Parking on common property' and By­law 15(2) provides:

   Storage containers and unregistered vehicles are not permitted on the common property.

2. Schedule 2 By­law 2 provides:

   A proprietor, occupier or other resident of a lot shall not obstruct lawful use of common property by any person.

The proceedings and the final hearing

1. The application was listed for directions on 2 May 2013.  There was no appearance by either of the respondents.  The applicant had provided the application by email to the respondents.  The Tribunal ordered that the applicant re­serve the application on the respondents at Unit 19 to ensure that the respondents were aware of the application.  The Tribunal also made orders for the parties to file all necessary documents and evidence in support or in opposition to the application in readiness for the final hearing.  No documents were filed by the respondents, pursuant to those orders, or at all.

2. The applicant has filed documents in addition to the documents attached to its application, particularly a witness statement by Mr Scott William Spinley who represents the applicant.

3. In addition, and at the request of the Tribunal, additional documents were provided at the final hearing.

4. As there was no appearance at the directions hearing, this matter was not referred to mediation and the only other means of resolving the matter was to list the matter for final hearing.  There was no appearance by or on behalf of the respondents at the final hearing.  The Tribunal confirmed that the final hearing notice had been sent to Unit 19 and was satisfied that the respondents were aware of the final hearing date.  At the final hearing the applicant withdrew the alleged breach of By­law 15(2) insofar as it concerned unregistered vehicles.  The application was heard on the final hearing date in the absence of the respondents.

Documentary evidence before the Tribunal

1. The documents that are before the Tribunal are as follows:

   1)The application (Exhibit 1).

   2)A letter from the applicant strata manager, which on the face of it is dated 6 June 2013, but was in fact issued on 19 March 2013 to the respondents according to the oral evidence (Exhibit 2).

   3)The minutes of a Council of Owners meeting of the applicant dated '6 August' (Exhibit 7).

   4)Two coloured photographs showing fencing being stacked on parking areas and other vehicles parked on the parking areas that form part of the common property (Exhibit 3).

   5)A plan of the subdivision of Lot 9 of Strata Plan 50800, dated 10 September 2007 (Exhibit 4).

   6)A schedule of lot entitlements dated 9 August 2007 (Exhibit 5).

   7)The witness statement of Mr Scott William Spinley (Exhibit 6).

   8)A copy of the Schedule 2 by-laws of the ST Act.

   9)A copy of the registered management statement which repeals, varies and adds to the standard Schedule 2 by­laws of the ST Act (Exhibit 8). 

   10)A further plan of the strata lots (Exhibit 4).

   11)The minutes of an extraordinary general meeting of the applicant held on 22 January 2008 (Exhibit 7).

   12)The minutes of an annual general meeting of the applicant held on 25 October 2011 (Exhibit 7).

   13)The minutes of an annual general meeting of the applicant held on 29 June 2010 (Exhibit 7).

   14)The minutes of a meeting of the Council of Owners of the applicant held on 6 August 2011 (Exhibit 7).

Standing to bring the proceeding

1. The Sch 1 by­laws that are referred to in the management statement include an alternative dispute resolution procedure (By­law 28), which is to be undertaken before proceedings are instituted. The Tribunal considers that Sch 1 By­law 28 and the dispute resolution procedure applies to disputes in relation to the Sch 1 by-laws and not disputes in relation to Sch 2 by­laws.

2. The Tribunal is satisfied by reason of the minutes dated 6 August 2011 that the applicant is entitled to be represented by the strata manager and, in addition, that the application was made with the approval of the Council of Owners of the applicant.

The dispute

1. From at least 2 October 2011 the compliance with By-law 2 and By­law 15(2) referred to above has been an ongoing matter of concern for the applicant.

2. In this proceeding, the relevant facts of the matter, as appear from the evidence of Mr Spinley, are as follows:

   •On 7 November 2012 Mr Spinley, on behalf of the applicant and in his role as strata manager, observed and noted that there were items of fencing stacked on what appeared to be pallets, and positioned on the common property.

   •Mr Spinley undertook an inspection of the common property on 19 February 2013 and noted that the stacked items of fencing were still in the same position as at 7 November 2012 on the common property.

   •Mr Spinley met with Mr James Marshall on 19 February 2013 and asked Mr J Marshall, on behalf of both of the respondents, to remove the stacked fencing from the common property.  Mr J Marshall responded that the stacked fencing would be moved by the end of that week because the fencing had been purchased by his customer who was due to collect the same at that time.

   •On 19 March 2013 Mr Spinley observed that the stacked fencing had not been removed from the common property.

   •Mr Spinley sent the respondents a letter, incorrectly dated 6 June 2012, on 19 March 2013 informing them that they were in breach of the by-laws and demanding that they remove the obstruction to the common property.

   •No action was taken by the respondents.

3. Mr Spinley gave evidence that he had been informed by Ms Vanessa Harvey-Bezvider from Unit 12 that as of 11 June 2013 the stacked fencing was still positioned on the common property as observed by Mr Spinley on 7 November 2012 and 19 March 2013 and as shown in the two coloured photographs attached to the application (Exhibit 3).  The strata plan (Exhibit 4) establishes that the fencing is stacked on the common property.

4. Mr Spinley also gave evidence that the fencing, as stacked on the common property, obstructs customers who attend at Unit 15 and causes an obstruction to the owner of Unit 15.  The larger coloured photograph attached to the application depicts that the stacked fencing is substantial and seems to be positioned on what appears to be an area of the common property allocated as car parking bays.

5. The Tribunal is satisfied on the information before it and finds that:

   •the respondents own or control the fencing that is stacked up on the common property and referred to by Mr Spinley and observed in the coloured photographs;

   •the respondents have caused the fencing to have been stacked on the common property,

   •the position of the stacked fencing on the car parking lot on the common property is an obstruction to customers of other unit occupiers and other owners of the units of the strata development; 

   •the respondents are using the common property as  storage space for their goods; and

   •the respondents have no authority from the applicant or the Council of Owners of the applicant, tacit or formal, to use the common property in the manner referred to.

Consideration and conclusion

1. The Tribunal is satisfied that the respondents' use of the common property by stacking the fencing in the manner described is a breach of both Sch 2 By­law 2 and a breach of Sch 2 By­law 15(2). The Tribunal also finds that the respondents have been in breach of both Sch 2 By­law 2 and Sch 2 By­law 15(2) since 7 November 2013 continuously to, and including the date of, the final hearing on 12 June 2013. Accordingly, the Tribunal shall make orders pursuant to s 81 and s 83 of the ST Act directing the respondents to remove the stacked fencing from the common property which fencing is positioned on the common property in breach of Sch 2 By­law 2 and Sch 2 By­law 15(2).

2. The allegation of parking an unregistered vehicle or obstructing the common property by parking has been withdrawn and the application, to that extent, shall be dismissed.

Order

1. Pursuant to s 81(3), s 83(1) and s 84(2) of the Strata Titles Act1985 (WA), the respondents shall remove the stacked fencing and any pallet, on which the fencing is stacked, currently positioned on the common property by no later than 5 pm on 28 June 2013, which fencing is positioned on the common property in breach of Sch 2 By­law 2 and Sch 2 By­law 15(2).

2. The application is otherwise dismissed pursuant to s 81(4) of the Strata Titles Act 1985 (WA).

I certify that this and the preceding [17] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS NATASHA OWEN-CONWAY, MEMBER