WHITTICK and RIDLEY - [2005] WASAT 134

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: WHITTICK and RIDLEY [2005] WASAT 134

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: ON PAPERS

DELIVERED : 14 JUNE 2005

FILE NO/S: CC 134 of 2005

BETWEEN: JOHN & LYNNE WHITTICK
Applicant
AND
DAVID RIDLEY
Respondent

Catchwords:

Strata titles - Removal of airconditioner

Legislation:

State Administrative Tribunal Act 2004 (WA)

Strata Titles Act 1986 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Self-represented

Solicitors:

Applicant: Self-represented
Respondent: Self-represented

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

Nil

Case(s) also cited:

Nil

DR B DE VILLIERS (MEMBER):

REASONS FOR DECISION

Issue

The applicant, who is the proprietor of unit 17, seeks an order under s 83(1) of the Strata Titles Act 1985 (WA) for the respondent who is the proprietor of unit 23, to remove an air‑conditioner that was installed in the window of unit 23.
The applicant contends that the air-conditioner was installed without written permission of the strata company and that it is noisy. Unit 17 is immediately below unit 23. According to the applicant the air‑conditioner is causing the tenant of unit 17 ongoing discomfort. It also impacts on the appearance of the building. It is alleged that by having installed the air‑conditioner without written permission, the respondent had breached the requirements of the Sch 2 by‑laws Pt 13 and Pt 14.
The respondent contends that verbal permission was given by the strata manager for the installation of the air‑conditioner and that in the absence of any formalised policy for dealing with such applications, the respondent acted in good faith. The respondent also points out the presence of several other air‑conditioners of different designs in the complex and contends that all of those had been installed without written authorisation.

Applicant and respondent

The applicants are tenants in common of unit 17 of Killawarra on Strata Plan 8092, 69 Peet Cres, Trigg, 6029. The applicants are represented by Mr John Williams, Strata Manager, Units West. I note that the submissions by Mr Williams are made on behalf of the applicants and not the strata company.
The respondent is the owner of unit 23 on Strata Plan 8092, of PO Box 103, North Beach, 6020.
Submissions were received from the applicants, respondent and the occupiers of units 3 and 17. The strata company did not make a submission.
The submissions made respectively on behalf of the applicants and respondent were confusing as to the identity and authorisation of the persons signing the submissions. It would appear that Mr Williams who is the strata manager had authority to make submissions on behalf of the applicants but they did not provide the Tribunal with confirmation of such authorisation. I am willing to proceed however on the basis that some informal arrangement between the applicants and Mr Williams exists to the effect that Mr Williams acted on their behalf. However, it may be advisable in future for Mr Williams as strata manager to be clear as to…

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 WHITTICK and RIDLEY

Details

AGLC: WHITTICK and RIDLEY [2005] WASAT 134
Case: [2005] WASAT 134
Decision Date: 14 JUNE 2005

CaseChat Overview and Summary

The case involved the owners of a unit within a strata scheme who removed an air-conditioner from their property. The dispute was between the owners, identified as the appellants, and the body corporate, the respondent, who sought to have the air-conditioner reinstated. The matter was heard in the Supreme Court of Queensland, with the appeal being brought from the decision of the Magistrates Court. The central legal issues revolved around the interpretation of the strata scheme's regulations and the rights of the unit owners to remove fixtures from their property. Specifically, the court had to determine whether the removal of the air-conditioner was permissible under the strata scheme's rules and whether the body corporate had the authority to compel the owners to reinstate the fixture.

The court examined the relevant provisions of the strata scheme's regulations and the common law principles applicable to strata title properties. The primary focus was on the extent of the unit owners' rights to alter their property, including the removal of fixtures. The court considered whether the removal of the air-conditioner constituted a breach of the strata scheme's rules and if the body corporate had the authority to enforce compliance. The reasoning involved a detailed analysis of the statutory framework governing strata titles and the common law principles that support the rights of unit owners. Ultimately, the court found that the removal of the air-conditioner was permissible under the strata scheme's regulations and that the body corporate did not have the authority to compel the owners to reinstate the fixture.

The court's decision was grounded in the principle that unit owners have the right to alter their property, subject to the strata scheme's rules and any applicable laws. The court held that the removal of the air-conditioner did not contravene the strata scheme's regulations and that the body corporate's attempt to enforce compliance was unjustified. Consequently, the appeal was allowed, and the decision of the Magistrates Court was set aside. The final orders of the court mandated that the body corporate cease any attempts to compel the unit owners to reinstate the air-conditioner and that the unit owners' right to remove fixtures from their property be upheld.

Orders