VENABLES and OWNERS OF CAMBRIDGE COURT STRATA PLAN 4879

[2012] WASAT 7

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   VENABLES and OWNERS OF CAMBRIDGE COURT STRATA PLAN 4879 [2012] WASAT 7

MEMBER:   MR D AITKEN (MEMBER)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   9 JANUARY 2012

FILE NO/S:   CC 1002 of 2011

BETWEEN:   ANTHONY JOHN VENABLES

Applicant

AND

OWNERS OF CAMBRIDGE COURT STRATA PLAN 4879
First Respondent

TAMMY CLARKE
Second Respondent

Catchwords:

Strata titles - Lot boundaries - Strata plan registered under Strata Titles Act 1966 (WA) - Lots on strata plan became derived lots on commencement of Strata Titles Act 1985 (WA) with changed boundaries - Lower horizontal boundary of lot is upper surface of finished flooring on date of commencement of Strata Titles Act 1985 (WA)

Legislation:

State Administrative Tribunal Act 2004 (WA), s 60(2)
Strata Schemes (Freehold Development) Act 1973 (NSW)
Strata Titles Act 1966 (WA), s 5(5)
Strata Titles Act 1985 (WA), s 3(2)(a), s 35(1)(c), s 131, s 132, Sch 3

Result:

Preliminary issue determined

Category:    B

Representation:

Counsel:

Applicant:     Self-represented

First Respondent          :     Mr M Johnstone-Summers

Second Respondent      :     Mr J Clyne

Solicitors:

Applicant:     Self-represented

First Respondent          :     Self-represented

Second Respondent      :     Mr J Clyne

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

Leo and The Owners of The Courthouse Apartments ­ Strata Plan 31754 [2004] WASTR 29

Reitmajer and Council of Owners of 14/16 Molloy Street Bunbury [2009] WASAT 63

The Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. There is a water leak above the applicant's strata lot which is causing water to enter his unit.

2. The applicant has applied to the Tribunal for an order requiring either the first respondent, which is the strata company, or the second respondent, who is the owner of the strata lot situated above the applicant's strata lot, to repair the water leak and the damage caused to the applicant's strata lot by the water leak.

3. It is in contention between the parties whether the water leak emanates from the water pipes which run through the concrete slab between the applicant's strata lot and the second respondent's strata lot (which the parties agree is part of the common property) or from faulty waterproofing or faulty tiling in the bathroom of the second respondent's strata lot.

4. The issue arose in the proceeding as to whether the waterproof membrane and tiling in the second respondent's bathroom is part of the common property of the strata scheme or is part of the second respondent's strata lot.  The Tribunal agreed to determine, as a preliminary issue, the boundaries of the second respondent's lot.

5. The Tribunal considered the relevant provisions of the Strata Titles Act 1985 (WA) and the construction to be given to the term 'upper surface of [a] floor' and decided that it means the upper surface of the finished floor at the date that the Strata Titles Act 1985 commenced to apply to the strata scheme.  Therefore, if the finished floor surface of the bathroom in the second respondent's lot on that date included tiling, the boundary of the second respondent's lot is the level of the upper surface of the tiling as it existed on that date.

Introduction

1. The applicant, Mr Venables, is the proprietor of Lot 28 (Mr Venables' unit) in the strata scheme known as Cambridge Court Strata Plan 4879 (strata scheme) which is situated at No 50 Cambridge Street, West Leederville.

2. The first respondent is the strata company of the strata scheme, which is responsible for maintaining and keeping in good repair the common property of the strata scheme (common property).

3. The second respondent, Ms Clarke, is the proprietor of Lot 38 (Ms Clarke's unit) in the strata scheme.  Ms Clarke's unit is situated directly above Mr Venables' unit.

4. Mr Venables' unit has suffered water damage due to a leak from above and neither the strata company nor Ms Clarke has accepted responsibility for fixing the leak and repairing the damage caused by the leak to Mr Venables' unit.

5. The source of the water leak is in contention.  One possibility is that it emanates from one or more of the water pipes which run through the concrete slab between Mr Venables' unit and Ms Clarke's unit, which the parties agree is part of the common property.  Another possibility is that the water leak emanates from the bathroom in Ms Clarke's unit due to a faulty waterproof membrane in the shower recess or faulty tiling on the bathroom floor.

6. Mr Venables has applied to the Tribunal seeking an order requiring either the strata company or Ms Clarke to repair the water leak and the damage to Mr Venables' unit which has been caused by the water leak.

The preliminary issue: what are the boundaries of Ms Clarke's unit?

1. The parties have agreed that the Tribunal should determine, as a preliminary issue, the boundaries of Lot 38 on Strata Plan 4879, being Ms Clarke's unit.  Of particular relevance in that determination will be: what is the lower horizontal boundary of the bathroom of Ms Clarke's unit, and are the waterproof membrane in the shower recess and the tiles of the bathroom floor within the boundaries of Ms Clarke's unit or are they part of the common property.

2. It was agreed by the parties that the preliminary issue would be determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA), and each party was given the opportunity to file written submissions and any decided cases on which they wish to rely in relation to the preliminary issue. Ms Clarke has filed written submissions, but neither Mr Venables nor the strata company have filed any written submission.

What does the Strata Titles Act 1985 (WA) provide regarding the boundaries of Ms Clarke's unit?

1. Strata Plan 4879 (strata plan) was registered on 21 June 1977 under the Strata Titles Act 1966 (WA) (1966 Act). Under s 5(5) of the 1966 Act, the boundaries between lots and between lots and common property on the strata plan were the centre planes of the walls, floors and ceilings of each lot, the strata plan not having provided otherwise.

2. On 30 June 1985, the Strata Titles Act 1985 (WA) (ST Act) commenced. Section 131 of the ST Act repealed the 1966 Act and s 132 of the ST Act gave effect to the transitional and savings provisions set out in Sch 3 of the ST Act (Sch 3).

3. Clause 1(1) of Sch 3 defines a 'former lot' as a lot under the 1966 Act as it existed immediately before the commencement of the ST Act. Clause 3(1) of Sch 3 provides that where a former lot had any boundary that under s 5(5) of the 1966 Act was the centre of a floor, wall or ceiling, then on the commencement of the ST Act, the former lot became a derived lot corresponding to that former lot and having the same boundaries as the former lot, with one important exception. That exception is where the former lot had any boundary that was the centre of a floor, wall or ceiling. Clause 3(1)(a)(i) of Sch 3 provides that, in those circumstances, the boundary of the derived lot became the upper surface of that floor, the inner surface of that wall or the under surface of that ceiling, as the case may be.

4. Therefore, the boundaries of the lots in the strata scheme were initially the centre planes of the floors, walls and ceilings, but on the commencement of the ST Act on 30 June 1985, those boundaries became the upper surfaces of the floors, the inner surfaces of the walls and the under surfaces of the ceilings.

Do the boundaries include or exclude the upper surfaces of the floors, the inner surfaces of the walls and the under surfaces of the ceilings?

1. In Reitmajer and Council of Owners of 14/16 Molloy Street Bunbury [2009] WASAT 63 (Reitmajer), the Tribunal considered the issue of what is meant by the term 'under surface of a ceiling' and whether the surface of a ceiling was part of a lot or part of the common property of a strata scheme.  At [16] ­ [18] in Reitmajer, the Tribunal considered the meaning of the term 'the boundary' in s 3(2)(a)(ii) of the ST Act and decided that the inner surfaces of the boundary structures form part of the lot for the purposes of those provisions of the ST Act.

2. The Tribunal applies that same construction to the terms upper surface of a floor, inner surface of a wall and under surface of a ceiling, which appear in cl 3(1)(a)(i) of Sch 3 of the ST Act, which uses the same terminology as s 3(2)(a) of the ST Act. Accordingly, the boundaries of Ms Clarke's unit consist of those surfaces. It follows that everything which is beneath those surfaces is part of the common property of the strata scheme.

3. It is not likely to be difficult to ascertain the inner surfaces of the walls and the under surfaces of the ceilings of Ms Clarke's unit, which form the vertical boundaries and the upper horizontal boundary of Ms Clarke's unit.

4. However, in the case of the floors of Ms Clarke's unit and, in particular, the floor in the bathroom, it may not be as straightforward.  The question arises as to whether or not the boundary surface of the floor of the bathroom floor is the surface of the tiles or the surface of the concrete slab on which the tiles are laid.

Is the upper surface of the bathroom floor the top of the tiles or the top of the concrete slab?

1. Ms Clarke's submissions refer to the decision of the former Strata Titles Referee in Leo and The Owners of The Courthouse Apartments ­ Strata Plan 31754 [2004] WASTR 29 (Leo) which concerned water leaking into a lot from above.  In Leo, the Strata Titles Referee decided that the original tiles in the bathroom which formed part of the floor structure of the lot above Mr Leo's lot were part of the common property of that strata scheme.  The reason for making that decision was stated to be that the Strata Titles Referee shared the Department of Land Administration's opinion that the floor in question, including the original tiles which formed part of the structure, was common property.  However, no basis was stated for forming that opinion.

2. Ms Clarke's submissions go on to state that the finding by the Strata Titles Referee in Leo conforms with the definition of 'floor' in the Oxford English Dictionary (edition not stated) as being 'the lower surface of a room on which one may walk'.

3. The decision in The Owners SP 35042 v Seiwa Australia Pty Ltd [2007] NSWCA 272 (Seiwa) dealt with the issue of what is the upper surface of a floor for the purposes of determining the boundaries of a lot under the Strata Schemes (Freehold Development) Act 1973 (NSW). The term 'upper surface of that floor' which appears in s 3(2)(a)(ii) and cl 3(1)(a)(i) of Sch 3 of the ST Act was taken from that New South Wales legislation: see the extract from the second reading speech for the Bill which became the ST Act which is set out in [17] of Reitmajer.

4. In Seiwa at [29], [39] and [42], the New South Wales Court of Appeal (Tobias JA, with Giles JA and Basten JA agreeing) made the following relevant statements:

   [T]here is still the question of what is the upper surface of a floor … Is it the upper surface of the floor slab or, where tiles are affixed to that surface as in the present case, the upper surface of the tiles?  As a matter of common sense and common parlance I would have thought the latter.

   …

   [I]f at the date of registration a tile or timber floor has been laid over and affixed to the concrete slab, then the boundary will be the upper surface of the tiles or timber flooring.  If that upper layer of flooring is later removed and replaced by tiles or timber flooring the upper surface of which is higher than the surface as at the date of registration of the strata plan, it is the level of the original surface which remains the lower horizontal boundary, not the level of the new surface.  The boundary remains fixed: it is not ambulatory.  The same principle applies to the determination of the upper horizontal boundary being the ceiling to the relevant cubic space as well as to the vertical boundary of that space being a wall.

   …

   [W]hat I have said above will not necessarily assist the avoidance of disputes … In many cases it will be the luck of the draw dependent on the condition of the relevant floors, ceilings and walls at the date of registration of the particular strata plan. …

5. The Tribunal accepts the principle set out in Seiwa as being applicable to the construction to be given to s 3(2)(a)(ii) and cl 3(1)(a)(i) of the ST Act.

6. Applying that principle to the situation in this matter, it is not the finished surface of the floors, walls and ceilings of Ms Clarke's unit on the date of registration of the strata plan which is relevant, but the finished surface of the floors, walls and ceilings on 30 June 1985 which determined the boundaries of Ms Clarke's unit. The reason for this is that initially the boundaries of Ms Clarke's unit were the centre planes of the floors, walls and ceilings under s 5(5) of the 1966 Act. However, those boundaries changed on 30 June 1985 when the ST Act commenced. In the case of the bathroom floor of Ms Clarke's unit, if tiles had been laid over the concrete slab as at 30 June 1985, then the lower horizontal boundary of Ms Clarke's unit is the level of the upper surface of the tiles on that date. Similarly, if on 30 June 1985 the finished surface of the bathroom floor was the concrete slab or some other material laid over the slab, then the lower horizontal boundary is the level of the upper surface of the slab or that covering material, as the case may be, on that date. That boundary remains fixed at that level regardless of any subsequent change of the floor surface material.

Conclusion

1. For the reasons stated above, the Tribunal has reached the following conclusion:

   •the boundaries of Lot 38 on Strata Plan 4879 are those levels established by the upper surface of the finished floors, the inner surface of the walls and the under surface of the ceilings as they existed on 30 June 1985 and those boundaries remain fixed at those levels from that date onwards, regardless of what might have happened to those finished surfaces subsequent to that date;

   •everything underneath those levels is part of the common property of the strata scheme, which the strata company is responsible for keeping in good and serviceable repair and properly maintained under s 35(1)(c) of the ST Act; and

   •everything at and above those levels is part of Lot 38 on Strata Plan 4879.

2. In respect of the bathroom floor of Ms Clarke's unit, if there is to be any contention between the parties regarding what the finished floor surface was on 30 June 1985, then it will be up to the parties to provide evidence to prove what the finished floor surface and the level of it was on that date and whether that differs from the level of the current finished floor surface.

3. The matter will now be listed for a further directions hearing to enable the parties to consider the decision on the preliminary issue and how they wish to proceed with the final determination of the matter.

Orders

1.On the preliminary issue, 'what are the boundaries of Lot 38 on Strata Plan 4879?', the Tribunal has decided that those boundaries are the levels established by the upper surface of the finished floors, the inner surface of the walls and the under surface of the ceilings as they existed on 30 June 1985.

2.The matter is to be listed for a further directions hearing to enable the parties to consider the decision on the preliminary issue and how they wish to proceed with the final determination of the matter.

I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR D AITKEN, MEMBER