WALLER and THE OWNERS OF TRANBY ON SWAN - STRATA PLAN 2232

[2005] WASAT 3

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985

CITATION:   WALLER and THE OWNERS OF TRANBY ON SWAN - STRATA PLAN 2232 [2005] WASAT 3

MEMBER:   MR R J KRONBERGER (REFEREE)

HEARD:   23 DECEMBER 2004

DELIVERED          :   4 FEBRUARY 2005

PUBLISHED           :  7 FEBRUARY 2005

FILE NO/S:   ST 19 of 2004

BETWEEN:   PETER OWEN WALLER

Applicant

AND

THE OWNERS OF TRANBY ON SWAN - STRATA PLAN 2232
Respondent

Catchwords:

Real Property - Strata titles

Legislation:

Strata Titles Act 1985 (WA)

Result:

The application be dismissed

Category:    B

Representation:

Counsel:

Applicant:     Applicant

Respondent:     Respondent

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

Nil

Case(s) also cited:

Nil

MR R J KRONBERGER (REFEREE): 

REASONS FOR DECISION

Issue

1. Work carried out on property by a lot proprietor.

Applicants

1. The Applicant is Peter Owen Waller who, at the time of making this application, was a registered proprietor of Lot 86 on Strata Plan 2232 ("the Strata Plan").

Orders sought

1. The Applicant has sought Orders pursuant to s 83(1) of the Strata Titles Act 1985 ("the 1985 Act") in the following terms

   "Part 1: That the strata company, “The Owners of Tranby on Swan – Strata Company 2232", through its council of owners order the proprietor of Unit 126, Trina Lee Sparrow, to cease forthwith all excavations and building upon the common property and to restore the common property to its original condition, removing as necessary all modifications, new brickwork, paving and drainage;

   Part 2: That, after 60 days, from the date of that order by the Strata Company and, in the event that the said restoration work has not been undertaken, the strata company shall make application to the Strata Titles Referee for an Order to the effect that the proprietor of Lot 126 shall carry out all work necessary to restore the common property to its original state."

Consideration of application

1. On 30 April 2004 the Registrar wrote to the Applicant seeking further information and clarification.

2. In the absence of a reply further letters were sent to him on 1 June 2004 and 10 August 2004.

3. The Respondent was reported to be overseas and not returning for sometime.

4. On 27 August 2004, the Applicant requested that the second of the requested Orders referred to above be amended by substituting the words "Title Referee" in lieu of the word "Company".

5. Following further letters to the Strata Company confirming the amended Application, the Applicant, in a letter dated 7 December 2004 advised that he is no longer a resident within the scheme.

6. A subsequent search of the Certificate of Title to Lot 86 on the Strata Plan has disclosed that he has not been the proprietor of Lot 86 since 1 October 2004.

Conclusion

1. In the circumstances I do not consider that I have any power to make an Order in favour of a person who is no longer a proprietor of a lot on the Strata Plan and that, therefore, I must dismiss the application.

Order

1. My Order is that

   "The application be dismissed."

   _________________________________

   R J KRONBERGER

   (Non-judicial member pursuant to s 167(15

   State Administrative Tribunal Act 2004)