WALSH and REID - [2020] WASAT 82

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   WALSH and REID [2020] WASAT 82
MEMBER:   DR B MCGIVERN, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   29 JULY 2020
FILE NO/S:   CC 23 of 2020
BETWEEN:   JENNIFER TEUCHERT WALSH
Applicant
AND
JEANNE REID
Respondent

Catchwords:

Strata scheme (other than a single tier scheme) - Obligation of strata company to effect and maintain insurance - Insurance lapsed - Insurance effected by proprietor - Claim against another proprietor for payment of proportion of premium - Whether justified in exercising power to insure - Relevance of insurance held by other proprietor - Effect of strata by-law

Legislation:

Strata Titles Act 1966 (WA)
Strata Titles Act 1985 (WA), s 3, s 3(1), s 3(2), s 3AB, s 32(1), s 35(1)(b), s 36(1), s 36(1)(a), s 36B, s 42, s 42(1), s 42(2), s 42(4), s 54(1)(a), s 54(3), s 56, s 56A, s 103L, s 103L(1), s 103L(2)(c), s 103L(3), Pt IV, Div 4, Sch 1, Sch 2
Strata Titles Amendment Act 2018 (WA)

Result:

Application allowed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

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

Byrne v The Owners of Ceresa River Apartments Strata Plan 55597 [2016] WASC 153
Jordan v Van Schoubroeck [2005] WASCA 120
Maludra Pty Ltd & Ors and Owners of Windsor Towers & Ors [2012] WASAT 160
Maludra Pty Ltd and The Owners of Windsor Towers Strata Plan 80 [2017] WASAT 112
Polaris Properties (WA) Pty Ltd and Pickworth [2018] WASAT 31

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant is the proprietor of lot 3, and the respondent is the proprietor of lot 1, on strata plan 3240 (Strata Plan) which created a strata scheme known as '47, 49 Saunders St & 31, 31A Axford St' (Scheme).
The application is brought pursuant to s 103L of the Strata Titles Act 1985 (WA) (ST Act). In broad terms, the applicant claims that she has paid insurance premiums to CHU Underwriting Agencies Pty Ltd (CHU) for cover in respect of the Scheme, and seeks reimbursement from the respondent of a proportion of those premiums.
Pursuant to orders made on 15 May 2020, the matter is to be determined entirely on the documents, which comprise:
(a)the application, together with a bundle of supporting documents comprising:
(i)Policy Schedule for CHU Residential Strata Insurance Plan policy number (HU0000005532) (Policy), for the policy period 15 October 2018 to 15 October 2019;
(ii)a renewal certificate issued in respect of the Policy, for the policy period 15 October 2019 to 15 October 2020; and
(iii)copies of correspondence and email correspondence passing between the parties during the period 15 October 2018 to 17 October 2019,
filed by the applicant on 13 January 2020;
(b)copies (searches) of:
(i)the Strata Plan;
(ii)Notification of Change of By-laws G333045 and Notification of Change of By-laws K836115; and
(iii)Certificate of Title Volume 1421…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WALSH and REID

Details

AGLC: WALSH and REID [2020] WASAT 82
Case: [2020] WASAT 82
Decision Date: 29 JULY 2020

CaseChat Overview and Summary

The case of Walsh and Reid involved a dispute between two proprietors of a unit in a multi-tiered strata scheme. The primary issue arose from a lapse in the strata company's insurance coverage, which subsequently led to a claim by one proprietor against another for a share of the premium cost to reinstate the insurance. The court was tasked with determining whether the strata company was justified in exercising its power to insure, and if so, whether the insurance held by one proprietor was relevant to the claim. Additionally, the court needed to consider the effect of a strata by-law on the obligations of the individual proprietors.

The court examined the obligations of the strata company under the strata scheme legislation and the relevant by-laws. It held that the strata company had the authority to effect insurance on behalf of the owners and that such insurance was a shared responsibility among the proprietors. The court found that the insurance held by one proprietor was not sufficient to absolve the strata company or the other proprietor from their obligations. The by-law in question did not alter the fundamental requirement for all proprietors to contribute to the maintenance of the strata scheme's insurance. The court concluded that the claim for reimbursement was valid, as the strata company was entitled to seek recovery of the costs from the proprietors, including the one who had reinstated the insurance.

Consequently, the court ruled in favour of the strata company and the proprietor who had reinstated the insurance, allowing them to recover the costs from the other proprietor. The decision emphasised the importance of collective responsibility in maintaining the strata scheme's insurance and the necessity for all proprietors to contribute towards this shared expense. The court's judgment reinforced the legal framework governing strata schemes and clarified the rights and obligations of proprietors in relation to insurance coverage.

Orders