The Owners Of Tranby On Swan - Strata Plan 2232 and Konig and Ors
[2005] WASAT 33
•18 MARCH 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985
CITATION: THE OWNERS OF TRANBY ON SWAN - STRATA PLAN 2232 and KONIG & ORS [2005] WASAT 33
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: ON PAPERS
DELIVERED : 18 MARCH 2005
FILE NO/S: ST 45 of 2004
BETWEEN: THE OWNERS OF TRANBY ON SWAN - STRATA PLAN 2232
Applicant
AND
URSULA KONIG
First RespondentFRANK LESLIE LARGE
Second RespondentSHAUN HARRISON
Third RespondentDIANNE JANE GAGLIARDI
Fourth Respondent
Catchwords:
Real property - Strata titles - Access to lots by strata company to install ventilation system - Strata plan 2232 - Issue estoppel
Legislation:
Sewerage (Lighting - Ventilation and Construction) Regulations 1971
State Administrative Tribunal Act 2004 (WA), s 7, s 11(1), s 32(4), s 47(1)(c), s 167(4)(b),
State Administrative Tribunal Regulations 2004 (WA), reg 28
Strata Titles Act 1966 (WA)
Strata Titles Act 1985 (WA), Pt 1 Div 2A, s 81(4)
Result:
The application be dismissed
Category: B
Representation:
Counsel:
Applicant: Self-represented
First Respondent : Self-represented
Second Respondent : Self-represented
Third Respondent : Self-represented
Fourth Respondent : Self-represented
Solicitors:
Applicant: Mr A Shaw, Atkinson and Associates
First Respondent : Self-represented
Second Respondent : Self-represented
Third Respondent : Self-represented
Fourth Respondent : Self-represented
Case(s) referred to in decision(s):
Port of Melbourne Authority v Anshun Pty Ltd [1981] 147 CLR 589 at 605
Seaman, P., Civil procedure Western Australia vol 1, 1990 [20.19.15A]
Shaun Harrison and The Owners of Tranby on Swan – 12 Wall Street Maylands – Strata Plan 2232 (2004) unreported, ST/2004‑000031
Case(s) also cited:
Nil
DR B DE VILLIERS (MEMBER)
REASONS FOR DECISION
Issue
A strata company's proposal to install individual air ventilation systems in strata lots to satisfy the requirements of a local government and the impact of a previous decision in regard to essentially the same facts and between the same parties on the new application.
Application transferred to the State Administrative Tribunal
The Strata Titles Referee appointed in terms of Part VI Division 1 of the Strata Titles Act 1985 originally received this application for investigation in terms of Part VI Division 2A of the said Act.
The Referee invited submissions to the application and received written submissions from the applicants and respondents as well as from other interested parties. The Referee had not made a determination prior to the matter being transferred to the State Administrative Tribunal.
The State Administrative Tribunal ("SAT") was established on 1 January 2005 pursuant to s 7 of the State Administrative Tribunal Act 2004 ("SAT Act"). On the same day this matter was transferred to SAT in terms of s 167(4)(b) SAT Act for continuation.
The President of SAT nominated me in terms of s 11(1) SAT Act to constitute the Tribunal for purposes of determining this matter. In accordance with the transitional provisions of the State Administrative Tribunal Regulations 2004 (reg 28) the matter is therefore taken to have commenced in the Tribunal.
I have taken the submissions received into account in making this determination.
Applicant
The applicant is "The Owners of Tranby on Swan - Strata Plan 2232.
Respondents
The respondents are the proprietors of the following respective lots on Strata Plan 2232 ("the Strata Plan").
Ursula Konig - Lot 108
Frank Leslie Large - Lot 143
Shaun Harrison - Lot 183
Dianne Jane Gagliardi – Lot 186
Related application
I note that Mrs Konig has drawn my attention to the fact that a related application was dealt with in 2004 by the then Strata Titles Referee under Shaun Harrison and The Owners of Tranby on Swan – 12 Wall Street Maylands – Strata Plan 2232 (2004) unreported, ST/2004‑000031 (hereinafter referred to as the "earlier matter").
The State Administrative Tribunal Act 2004 enables me in terms of s 32(4) to inform myself on any matter that I seem fit in considering an application. I have therefore taken the content of the earlier matter into consideration in making this determination
On 8 November 2004 the Strata Titles Referee made an order in the earlier matter on the application of the said Ursula Konig (unit 108) and Shaun Harrison (unit 183) in relation to the parcel. The parties in the earlier matter were basically the same as in the current application and the facts were the same. However Frank Leslie Large - Lot 143 and Dianne Jane Gagliardi – Lot 186 have now been added as respondents although they were not applicants in the earlier matter. In all other aspects the current application deals with the same issues as the earlier matter in which the Referee made a final determination.
In the earlier matter the applicants sought orders to oblige the strata company to keep in good and serviceable condition the common property and in particular to "repair the common duct ventilation system and associated fans which service units 183 and 108". The application was the subject of extensive submissions by the applicants, respondents and others.
In that matter the following orders were made:
"The Owners of Tranby on Swan – Strata Plan 2232 ('the Strata Company'):
(1)shall not, without the prior written consent of the proprietors of lots 108 and 183, respectively, on Strata Plan 2232, install or arrange for any person to install, within the boundaries of those lots, any ducting, fixtures or fittings for the extraction of air from, or the ventilation of, those lots; and
(2)shall, by 8 March 2005 or by such earlier date as the City of Bayswater may specify, but without breaching Order (1) above, take all steps, at the Strata Company's cost in all respects, to ensure that the existing common property air extraction and ventilation systems installed to serve the said Lots 108 and 183, or any new or alternative air extraction and ventilation systems may be provided in their place by the Strata Company, comply with the Sewerage (Lighting, Ventilation and Construction) Regulations 1971, to the satisfaction of the City of Bayswater."
Orders sought
In the current application the applicant seeks an Interim Order and Final Order in each case in the following terms:
"Owners Ursula Konig Lot 108, Frank Large Lot 143, Shaun Harrison 183, Diane Gagliardi 186, conform with s 39(1)(c) of the Strata Titles Act 1985 by giving immediate access to their respective lots by allowing the Corporate Body to undertake installation of ventilation ducts to conform to the air flow requirements of the Health and Safety regulations of the City of Bayswater which has ordered the corporate body to undertake."
The application under consideration was lodged on 18 April 2004, barely a month after the earlier matter had been lodged.
Strata Plan and relevant Act
The Strata Plan was registered on 18 January 1974 pursuant to the Strata Titles Act 1966 ("the 1966 Act").
In 1985, the 1966 Act was repealed and replaced by the Strata Titles Act 1985 ("the 1985 Act"), which continues to be the relevant Act.
In these Reasons, unless otherwise specified, all references to sections and Schedules are, respectively, references to sections of and Schedules to the 1985 Act.
Parcel
The parcel is a 206 lot residential scheme known as "Tranby on Swan" and is situated at 12 Wall Street, Maylands.
By-laws
The Strata Company's by-laws are the "standard" by-laws contained in Sch 1 and 2 plus (except to the extent of any inconsistency with the 1985 Act – Sch 3 cl 12(2)) the by-laws and amendments recorded on the Strata Plan in Notification A801113 in 1974.
Notification I650780, recorded on the Strata Plan on 6 October 2003, and Notification I695770, recorded on the Strata Plan on 14 November 2003, refer to alterations and additions to the Sch 2 by-laws, but none of those changes affects this application.
The Strata Company's Sch 1, by‑law 1(1)(a) (which should be read with s 38 and s 39 which deal with the power of a strata company to carry out work and to enter) provides that:
"(1)A proprietor shall
(a)forthwith carry out all work that may be ordered by any competent public authority or local government in respect of his lot other than such work as may be for the benefit of the building generally and pay all rates, taxes, charges, outgoings and assessments that may be payable in respect of his lot."
Lot boundaries
Each lot within the scheme is a cubic space, bounded, pursuant to s 3(1) and s 3(2), by the upper surface of the floor, the inner surfaces of the perimeter walls and the under surface of the ceiling of the part of the building in which the lot is situated.
Everything else within the parcel, including the original ventilation and ducting system, is common property.
The word "wall" is defined by s 3(1) as including:
"a door, window or other structure dividing a lot from common property or from another lot."
Applicant's submissions
The applicant has provided the following grounds in support of its application.
"An order with a threat of court action has been served on the Strata Title Tranby on Swan Strata No 2232 by the help of Bayswater and the four named owners have refused impress for the Strata Company to comply with the order. A copy of that order hereto attached."
The following are extracts from copies of correspondence proved by the Applicant.
(a)Letter dated 22 August 2002 from MBR Sheetmetal Pty Ltd to Ursula Konig stating:
"…After inspection of your unit (17‑08‑02) in reference to ducting from the toilet and bathroom, we advise that we are unable to duct direct from these two rooms as we will be venting over the stairs which is not permitted.
We have been advised that the existing ducting was never successful in the first instance due to the constitution method used and the leakage in the joints between floors. Therefore re-installing a fan unit would be unsuccessful.
Unfortunately, the only alternative is the proposed unit from your entry and out through the window.
The duct in the entry could be made oblong so as not to protrude down more than say, 100 mm below ceiling height. This is the only way these rooms can be vented ..."
(b)Letter dated 22 May 1996 from the City of Stirling to the Secretary of the applicant stating:
"… This is to confirm that Council's Senior Environmental Health Officer Peter Witkowski has viewed a demonstration model of the proposed exhaust fan and associated duct work with Mr Raymond Clee at Turner Engineering of 13/3 King Edward Road, Osborne Park on 22 May 1996.
The ventilation system, as demonstrated, would appear to satisfy the requirements of the Sewerage (Lighting, Ventilation and Construction) Regulations 1971 subject to proper installation as specified by Turner Engineering and also having regard to the volume of the rooms to be serviced.
Further, it will be necessary to provide certification by a structural engineer that any interference with load bearing walls involved in installing the duct work will not have any deleterious effect on the building structure. This certification may be given for each particular unit design on the basis that the duct work will be installed in the same position in each case …"
(c)Letter dated 5 January 1999 from the Applicant to Ursula Konig, stating:
"Bathroom and WC ventilation your letter to City of Bayswater 17/11/98 refers.
The City of Bayswater has referred your letter on to me with the request that I liaise and attempt to address the issues your raise.
You are aware that the council of owners has chosen to adopt a certain approach to the resolution of the ventilation problems, I believe that Councils decision was made in the utmost good faith and is in fact in the best interests of all owners. There is currently an application before the Strata Title referee regarding this issue. Obviously I am unable to give any assurance as to what ruling the referee will make but I am confident that any decision will take into account the interests of all concerned and will take into account the principle of balance of convenience.
In the meantime I am able to advise that some 100 systems have been installed, all of these have been tested (including a random sample by the City of Bayswater) and shown to comply with the relevant regulations.
I confirm that we are ready, able and willing to proceed with the installation of a system in your unit, the work will be done with a minimum amount of inconvenience to yourself. We look forward to your co‑operation and assure you of ours …"
(d)Letter from City of Bayswater dated 31 December 2003 to the Secretary of the Applicant stating:
"… I refer to Council's previous correspondence dated 15 January 2003 concerning the upgrade of mechanical ventilation systems to various residential units within the Tranby On Swan Complex and the numerous discussions and meetings Council Officers have held with representatives from Tranby on Swan regarding the issue.
Given that a number of residential units' ventilation systems have not been upgraded as per the requirements of the Health Act (Sewer, Lighting, Ventilation and Construction) Regulations 1971, the matter has now been referred to Council's Solicitors to initiate legal action to address the matter …"
(e)Letter from City of Bayswater dated 29 March 2004 to the Chairperson of the applicant stating:
"… Thank you for your correspondence of 18 March 2004 advising of the current situation in relation to the upgrade being made to residential units within the Tranby On Swan complex.
Please be advised that the Department of Health has advised that there is no current approval to use the alternative water closet fan ventilation system as the approved means of removing contaminated air from toilets or air locks. There is no objection, however, to this system being used to compliment an approved conventional mechanical exhaust system servicing sanitary, ablution or air lock situations within a residential development.
In relation to the ongoing upgrade of additional units yet to be serviced at the Tranby On Swan complex, please find enclosed for your information correspondence sent to one of your tenants within the complex concerning individual arrangements that they have made with the Strata Title Referee to have this matter examined.
Please note, the City will not proceed with further legal action providing this matter is resolved no later than Friday 23 April 2004.
Should ventilation issues be outstanding at this time, Council's solicitors will then be instructed to list the matter before the District Court at the earliest opportunity to ensure that the sanitary mechanical exhaust ventilation systems installed within the Tranby On Swan complex comply with the Health Act (Sewerage, Lighting, Ventilation and Construction) Regulations …"
I have been advised that the parcel was within the City of Stirling but, following local government boundary changes, it is now within the City of Bayswater.
Responses to application
The four respondents and the proprietor of one other lot have opposed the application. Mrs Konig in a letter dated 13 January 2005 referred me to the orders made on 8 November 2004 by the Strata Titles Referee in regard to the earlier matter in which she was one of the applicants.
The following are extracts from the submissions received in opposition to the application:
Extract from submission from Mrs Konig dated 8 June 2004:
"In March 2004 I made an application to the Strata Titles Referee for an order that the strata company repair or replace the common duct ventilation system that services my lot and those other lots in my block – Reference 31/2004. To date the Strata Titles Referee has not yet made a determination in that regard."
"The City of Stirling advised the strata company that compliance with the ventilation regulations may be effected by repair or replacement of the common duct systems or individuals lot fans with internal ducting."
"Section 35(1)(c) states that the strata company shall maintain or replace the common and personal property of the strata company. In my application ST 31/2004 (the earlier matter) I have requested the Strata Titles Referee to make orders with regard to the ventilation systems in those terms."
Extract from submission from Mr Shaun Harrison dated 24 May 2004:
"My mother, Nina Harrison, has lived in unit 183 for over 14 years and does not wish the unit to be defaced in such a way as to alter the structures."
"I am worried that the installation will devalue my unit and nobody will pay me compensation for such devaluation."
"I enclose a copy of a report by Airtech Pty Ltd, ventilation specialists, dated 30 April 2004 that clearly indicates that the common duct system can be repaired."
Extract from submission from Mr Peter Owen Waller (proprietor lot no 86) dated 24 May 2004:
"I have not been served with a copy of the notice by the strata company as anticipated by the provisions of S 79(2)(a) Strata Titles Act 1985 (WA). My enquiries of other proprietors have indicated that a copy of that notice has not been served on proprietors by the strata company in accordance with the provisions of S 79(2)(a).
"Section 35(1)(c) requires the strata company to maintain or repair any common or personal property of the strata company. In this regard to my certain knowledge there are no ventilation ducts installed in the lots of the respondents. What the strata company is proposing is the installation of ventilation ducts within the cubic space of those lots in order to obviate the need to repair or replace ventilation ducts associated with the common property ventilation systems installed by the original developer."
Extract from submission from Mrs Dianne Jane Gagliardi dated 8 June 2004:
"I have lived in unit 186 for over 12 years and do not wish my unit to be defaced in such a way as to alter the structure. My bathroom fan currently is connected to the common duct. It is not possible to connect the pipes the way the strata company wants to because my whole block's water pipes are located behind the picture. The pipes also cannot be located along my bedroom as I have built in cupboards along that side. It would do a lot of damage to my unit.
"I am worried that the installation will devalue my unit and nobody will pay me compensation for such devaluation."
"I enclose a copy of a report by Airtech Pty Ltd, ventilation specialists, dated 30 April 2004 that clearly indicates that the common duct system can be repaired."
Extract from submission from Mr Frank Leslie Large dated 3 June 2004:
"I have no intention of allowing the body corporate to install the ventilation duct which will prevent the enjoyment of my lot by an unsightly projection from the ceiling and a passage way and bedroom."
"From all the above statements and attachments the body corporate has never acted upon fixing the ventilation system…the only action taken is [sic] quick cheap fixit [sic] to avoid prosecution …"
There have been no submissions in support of the application.
Following the initial submissions made, supplementary submissions were also received of which the following are extracts:
Extract from submission from Mrs Ursula Konig dated 2 June 2004:
"The application has not been distributed amongst all the owners as of today's date and consequently owners have not been able to file submissions."
Extract from submission from Mrs Ursula Konig dated 13 January 2005:
"I would like to bring to your attention that the Strata Titles Referee made orders on 8 November 2004 in my favour in application no ST 20004/31 (the earlier matter). I understand that a member of your tribunal is currently making orders concerning application ST 20004/45. Please note that the applications are related an it would cause a lot of confusion if the orders in the process of being made shortly concerning application ST 2004/45 were to contradict the orders previously made by the Strata Titles Referee. The respondents would not know which orders to follow."
Finding
The current application by the Strata Company was lodged on 18 April 2004. The respondents in the matter are Ursula Konig, Frank Leslie Large, Shaun Harrison and Dianne Jane Gagliardi.
The earlier matter that amounts to the essentially the same facts and submissions was lodged on 16 March 2004 (ST/2004-000031) by Mrs Ursula Konig and Mr Shaun Harrison with the Strata Company being the respondent. The Strata Titles Referee dealt with that matter comprehensively and made a final decision on 8 November 2004.
From the submissions provided to me the only difference I can discern from the earlier matter and this application is that 2 new respondents have been added. But the issue in dispute remains the same in respect of all 4 the respondents namely questions regarding the duty of the strata company to repair, maintain, upgrade and/or replace the air duct system in order to comply with statutory requirements.
Ideally this application by the Strata Company should have been consolidated with the earlier matter or in the alternative it could have been withdrawn so as not to allow applications that deal with the same facts between the same parties to proceed in parallel. In her letter dated 13 January 2005 Ms Konig correctly remarks that the two matters are related and that "it would cause a lot of confusion if the orders in the process of being made shortly concerning application no ST2004/45 were to contradict the orders previously made by the Strata Title Referee. The Respondents would not know which orders to follow."
The Strata Title Referee made orders on 8 November 2004 in regard to the earlier matter (quoted in full above).
Two of the respondents have suggested that the applicant failed to comply with s 79(2), which required it to serve on all lot proprietors and other parties listed in that section. The strata company did not provide me with information to demonstrate that it had served all the relevant interested parties with a notice of its application. This may explain the limited extent of submissions received. I note that no submissions were received in support of the application.
It is also possible that some confusion exists amongst proprietors as to the status of the two applications - the earlier matter and this matter - vis-à-vis each other. Persons who may have considered making a submission could have been dissuaded from doing so in the belief that the matter had been dealt with by the Strata Titles Referee.
The Reasons for Decision in the earlier matter dealt comprehensively with the submissions made in regard to that application. Although only the applicants (Shaun Harrison and Ursula Konig) who brought the application in the earlier matter and the respondent are bound by the decision, it appears to me that the current application, which involves two other proprietors (Frank Large and Dianne Gagliardi), is based on the same facts.51
Issue estoppel
The question that arises from this application is to what extent I can take into account the decision made in the earlier matter by the Strata Title Referee. Section 32(4) of the SAT Act provides the answer in that it empowers me to inform myself on any matter that may have bearing on the application. I have therefore informed myself of the content of the earlier matter, the submissions made therein and the outcome thereof.
Although the respondents in the current application have not raised the technical defence of estoppel (bearing in mind they are not legally trained), the letter dated 13 January 2005 from Mrs Konig drawing my attention to the previous decision and her concerns that a different decision now may cause great uncertainty, raises the notion of what is known as "issue estoppel" being applied as defence to this application.
In Port of Melbourne Authority v Anshun Pty Ltd [1981] 147 CLR 589 at 605 considered the impact of a matter dealt with by prior judgment on a new application and concluded that if a matter had been decided in a previous proceeding, it precludes parties from contending to the contrary in a new application. His Honour remarked as follows:
"These notions of res judicata and issue estoppel are founded on the necessity, if there is to be an orderly administration of justice, of avoiding re-agitation of issues, and of preventing the raising of issues which could have been and should have been decided in earlier litigation.
In this instance, the issue now sought to be raised was plainly open to be agitated in the previous litigation. The judgment in that case is inconsistent with the judgment now sought by the plaintiff. To preserve the orderly administration of justice the earlier judgment should be treated as conclusive on the question of indemnity. There is no discretion to allow the raising of that issue against the unwilling defendant; the attempt to do so is properly characterized as an abuse of process."
If the defence of issue estoppel is indeed available to the current application, two questions remain namely (a) whether a tribunal such as the State Administrative Tribunal has the jurisdiction to make such a finding and (b) if issue estoppel is also available to the two respondents who were not involved in the previous application.
In regard to the first question whether issue estoppel falls within the jurisdiction of the State Administrative Tribunal, I refer to the authoritative work of Seaman, P., Civil procedure Western Australia vol 1, 1990 [20.19.15A] (Butterworths) in which he comments that issue estoppel does indeed extend to a tribunal provided that a final decision had been made in earlier proceedings in regard to a similar matter.
I therefore find that issue estoppel can be used as a defence by the two respondents who were involved in the earlier proceedings.
In regard to the second question I note that issue estoppel would in principle apply against the same parties who were involved in the earlier matter. It would therefore not necessarily be available as a defence to the two respondents who had not been involved in the earlier matter.
In light of the similar nature between the current application and the earlier matter, I conclude that the current application must be dismissed as far as respondents Konig and Harrison are concerned on the basis that the issue had been dealt with in the earlier matter. To allow the application to continue and risk a different outcome would pervert the course of justice, lead to uncertainty and confusion and could even be regarded as an abuse of process in terms of s 47(1)(c) of the SAT Act. The decision in the earlier matter was final and inconsistent with the orders being sought by the applicant in the current application. The current application must therefore not be allowed to continue in regard to respondents Konig and Harrison.
Having considered the submissions made by the Mr Large and Mrs Gagliardi I have come to the conclusion that the strata company is obliged to consider what alternative steps can be taken to comply with the Sewerage (Lighting, Ventilation and Construction) Regulations 1971 to the satisfaction of the City of Bayswater. The application for orders as sought by the applicant must therefore be dismissed.
Order
In terms of s 47(1)(c) of the State Administrative Act and s 81(4) of the Strata Titles Act I order that the application be dismissed.
I certify that this and the preceding 16 pages comprise the reasons for decision of the State Administrative Tribunal.
________________________________
B DE VILLIERS
MEMBER
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