JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WONG -v- REID [2016] WASC 59 CORAM : BEECH J HEARD : 22 FEBRUARY 2016 DELIVERED : 29 FEBRUARY 2016 FILE NO/S : GDA 11 of 2015 BETWEEN : OLIVER WONG Applicant
AND
JEANNE REID
Respondent
ON APPEAL FROM: Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA Coram : MR T CAREY (MEMBER)
File No : CC 383 of 2013
Catchwords:
Real property - Strata scheme - Lot owner built wall on common property without consent of all other lot owners - State Administration Tribunal order to take down the wall - Whether Tribunal erred in law - Turns on own facts
Legislation:
State Administration Tribunal Act 2004 (WA), s 105
Strata Titles Act 1985 (WA), s 35, s 81, s 83 Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant : In person
Respondent : No appearance
Solicitors:
Applicant : In person
Respondent : No appearance
Case(s) referred to in judgment(s):Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 321 BEECH J: Mr Wong seeks leave to appeal against a decision of the State Administrative Tribunal (the Tribunal) requiring him to remove a wall he constructed on common property in a strata scheme and to arrange for the reconstitution of a garden on the common property which it found he had removed. 2 For the reasons that follow, I would not grant leave to appeal.
Background
3 Mr Wong and the respondent, Mrs Reid, each own units in a four lot strata scheme in Como. Mr Wong owns unit 2 and Mrs Reid unit 1. On 6 March 2015, Mr Wong commenced works to construct a brick wall and Colourbond fence on common property adjoining unit 2. The effect of the wall and fence was to enclose common property for the exclusive use of unit 2. In order to allow the wall to be built, a garden of native plants was removed from the common property.
4 On 17 March 2015, Mrs Reid applied to the Tribunal under s 83(1) of the Strata Titles Act 1985 (WA), seeking an order for demolition of the wall and fence.
The issues before the Tribunal
5 Before the Tribunal Mr Wong claimed that he had sought Mrs Reid's approval, by writing to her, but that she had not responded. Mrs Reid stated that she was unaware of Mr Wong's plans to build the wall until the building works commenced on 6 March 2015. Mr Wong said that he approached Mrs Reid on a number of occasions and did not get a response. Mr Wong did not assert that Mrs Reid had given any approval, whether in writing or otherwise.
6 Further, Mr Wong claimed that, by error in 1996, the area of common property in front of Mr Wong's unit had not been registered as an area for the exclusive use of Lot 2 as had been intended.
7 Further, Mr Wong asserted that Mrs Reid had a collateral motive in bringing the application, arising from an earlier incident involving the removal by Mr Wong of a tree.
The Tribunal's reasons
8 The Tribunal found as follows:
(1) the wall was constructed on common property without any formal approval having been obtained from the strata company and without the approval of Mrs Reid;1 (2) the area enclosed by the wall and fence is not the subject of an exclusive use bylaw;2
(3) Mr Wong claims that the relevant area should have been the subject of the exclusive use bylaw registered in 1996 and a mistake was made at the time of registration of the amended bylaw;
(4) that is immaterial because the legal entitlements of the property depicted in the strata plan are determined by what is in the strata plan. While it may have been open to Mr Wong to take steps to cause the alleged mistake to be rectified, that had not occurred. Further, a right to exclusive use does not give rise to a right to construct;
(5) consequently, the applicant's claim for removal of the fence and wall succeeded;3
(6) the claim that Mr Wong was responsible for damage to an area of garden on the common property turned on resolution of conflicting factual assertions made by Mrs Reid and Mr Wong;4
(7) having recounted the competing versions, the Tribunal came to the view that Mrs Reid's evidence was to be preferred.5 The Tribunal found that Mr Wong changed the garden and removed the plants in order to pursue his intention to enclose the common property and not as Mr Wong had claimed, because of the deteriorating state of the garden;6 and
(8) having significantly altered the state of the common property without the consent of all of the owners of the common property, namely the owners in the strata plan, Mr Wong was responsible for the repatriation of the common property to its original condition.7
The orders of the Tribunal 9 The Tribunal made the following orders:
(1) The respondent shall by 11 September 2015 by his contractors or otherwise demolish and remove the wall and Colourbond fence which he caused to be constructed on the common property on the front of his lot. (2) The respondent and/or his contractors shall make good any damage occasioned by compliance with order 1.
(3) By 13 November 2015 the respondent shall arrange and pay to a maximum of $3,000 for reconstitution of the garden in the common property in front of lot 2 which:
Grounds of appeal 10 Mr Wong is self-represented. He filed grounds of appeal on 4 January 2016. His grounds are expressed in a lengthy and discursive fashion that is, understandably, not informed by the legal framework. The substance of Mr Wong's grounds may be summarised as follows:
(1) the quantification of the amount, $3,000, to reconstitute the garden was excessive. There was no reticulation and the plants in the native garden were dead when Mr Wong moved in; (2) Mr Wong had sought Mrs Reid's approval to construct the wall and she did not respond. On 1 December 2014 a quorum of three out of four owners unanimously approved Mr Wong's proposal. Mrs Reid never responded;
(3) because Mrs Reid did not expressly reject Mr Wong's proposal, he was unable to apply to the District Court under s 51 of the Strata Titles Act for an order that the resolution passed by three of the four owners be treated as a resolution without dissent;
(4) the Tribunal failed to consider that on 21 November 1996, the other units, apart from unit 2, were given exclusive use of the land at the front of their properties and by error the intended area to be registered for the exclusive use of unit 2 was not recorded in what was registered;
(5) the Supreme Court should look at the matter in a reasonable manner.
11 At the hearing of the application for leave to appeal, Mr Wong handed up a document setting out further proposed grounds of appeal. Although numbered 1 to 3 in that document, to avoid confusion I will refer to them as grounds 6 to 8. They may be summarised as follows:
(6) Ms Reid's application to SAT essentially sought to enforce breaches of the bylaws. Only the strata company has power to enforce bylaws. Because the applicant was a lot owner and not the strata company, there was no power for Mrs Reid to enforce the bylaws by application to SAT. (7) The application before SAT sought to give a remedy for the breach of bylaw 16 of the strata company's bylaws. That bylaw had no application to the common property the subject of the application.
(8) The Tribunal erred in law in making the orders which it made because its power to make an order in terms different from the orders sought by the applicant applies only so long as it does not differ in substance from the orders sought. All of the orders made by the Tribunal differ substantially from the orders sought by the applicant.
The Strata Titles Act 12 The following provisions of the Strata Titles Act are relevant:
35. Duties of strata companies (1) A strata company shall -
(a) enforce the by-laws; and (b) control and manage the common property for the benefit of all the proprietors; and
(c) keep in good and serviceable repair, properly maintain and, where necessary, renew and replace -
(i) the common property, including the fittings, fixtures and lifts used in connection with the common property; and (ii) any personal property vested in the strata company,
and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause; and
… 42. By-laws
(1) A strata company may make by-laws, not inconsistent with this Act, for -
(a) its corporate affairs; and (b) any matter specified in Schedule 2A; and
(c) other matters relating to the management, control, use and enjoyment of the lots and any common property.
(2) The provisions set out in Schedules 1 and 2 shall be deemed to be by-laws of the strata company and may be amended, repealed or added to by the strata company -
(a) by resolution without dissent (or unanimous resolution, in the case of a two-lot scheme), in the case of Schedule 1 by-laws; or (b) in accordance with any order of a court or the State Administrative Tribunal or any written law; or
(c) in any other case, by special resolution.
… 51 Relief where unanimous resolution or resolution without dissent required
(1) In any case where under this Act a unanimous resolution or a resolution without dissent is necessary before any act may be done and that resolution is not obtained but the resolution is supported to the extent necessary for a special resolution, a person included in the majority in favour of the resolution may apply to the District Court to have the resolution as so supported declared sufficient to authorise the particular act proposed and if the District Court so orders, the resolution shall be deemed to have been passed as a unanimous resolution or a resolution without dissent, as the case may be.
(1a) This section does not apply to a two-lot scheme.
(2) Notice of an application under subsection (1) shall be served on -
(a) every person who was entitled to exercise the power of voting conferred under this Act and did not, either in person or by proxy, vote in favour of the resolution; and (b) every person whom the District Court declares to have a sufficient interest in the proceedings to require that he should be served with notice of the application,
and the District Court may direct that any person served with notice of proceedings under this subsection shall be joined as a party to the proceedings.
(3) The District Court shall not order a party who opposes an application under this section to pay the costs of a successful applicant unless the District Court considers the actions of that party in relation to the application to have been unreasonable.
… 81. Orders under this Division
(1) The State Administrative Tribunal may make an order sought by the applicant and an order made may be expressed in terms different from the order sought, so long as it does not differ in substance from the order sought. (2) An order made may include such ancillary or consequential provisions as the State Administrative Tribunal thinks fit.
(3) The State Administrative Tribunal may order a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot to do, or to refrain from doing, a specified act with respect to a parcel.
… 83 General powers of SAT to make orders
(1) The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by-laws in connection with that scheme on any person entitled to make an application under this subsection or on the council or the chairman, secretary or treasurer of the strata company.
(2) Where a strata company has a discretion as to whether or not it exercises or performs a power, authority, duty or function conferred or imposed on it by this Act, it shall be deemed to have refused or failed to exercise or perform that power, authority, duty or function only if it has decided not to exercise or perform that power, authority, duty or function.
13 Clause 1(2)(a) and (b) of the sch 1 bylaws provide as follows: 14 Clauses 3 and 13 of the sch 2 bylaws provides:
3. Damage to lawns etc. on common property
Except with the approval of the strata company, a proprietor, occupier, or other resident of a lot shall not - (a) damage any lawn, garden, tree, shrub, plant or flower upon common property; or
(b) use any portion of the common property for his own purposes as a garden.
… 13. Notice of alteration to lot
A proprietor of a lot shall not alter the structure of the lot except as may be permitted and provided for under the Act and the by-laws and in any event shall not alter the structure of the lot without giving to the strata company, not later than 14 days before commencement of the alteration, a written notice describing the proposed alteration.
The limited scope of an appeal from the Tribunal 15 An appeal to this court from the Tribunal has a limited scope, as set out in s 105 of the State Administrative Tribunal Act 2004 (WA). That section provides relevantly as follows:
16 I apply the observations of Buss JA in Paridis v Settlement Agents Supervisory Board as to the notion of an 'appeal on a question of law':8
An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'. Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2) ... A ground of appeal which asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law ...
...
A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis ...
A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law ...
A ground of appeal that a tribunal has failed to take into account a consideration which, in the circumstances, it was bound to take into account, alleges an error of law. It is not sufficient, however, if the consideration is merely one that may properly be taken into account, or that many persons may have taken into account. There is a distinction between failing to take into account relevant considerations which a tribunal is obliged to take into account, on the one hand, and failing to take into account a particular piece of evidence, on the other ...
17 The importance of recognising and respecting the limited scope of an appeal from the Tribunal has been recently reiterated by the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd.9The disposition of the application
18 In my opinion, Mr Wong's application for leave to appeal must be dismissed because none of his grounds of appeal raise a question of law on which he has shown an arguable case.
19 The substance of ground 1 is a complaint that the Tribunal failed to accept the version of facts relating to the state of the garden and the quantification of the maximum cost. A ground of appeal that complains that findings of fact should not have been made, and that other evidence should have been preferred, does not raise a question of law.
20 Ground 2 would seem to be related to ground 3. Viewed in isolation, ground 2 does not raise any matter that is capable of revealing any error of law in the Tribunal's decision. If one accepts the factual assertions in ground 2, namely that Mr Wong sought Mrs Reid's approval and she failed to respond, that would not demonstrate any error of law on the part of the Tribunal. Further and in any event, the Tribunal preferred Mrs Reid's evidence on this factual issue, and no error of law is revealed in that conclusion by the Tribunal.
21 Similarly, nothing in ground 3 reveals any error of law on the part of the Tribunal. First, ground 3 is premised on accepting Mr Wong's version of the facts. As I have said, the Tribunal made fact findings contrary to Mr Wong's case, and no error of law is revealed in that respect. Secondly, and in any event, even if Mr Wong's version of the facts were accepted, that would not have sustained a contrary conclusion by the Tribunal on the questions for decision by it. Even if Mr Wong's version of the facts in this respect is accepted, no error of law is revealed in the Tribunal's decision.
22 Ground 4 complains that the Tribunal failed to consider the fact that it was only by error that unit 2 was not given exclusive use of the land in question. That ground must be dismissed. It is clear from the Tribunal's reasons that it did consider Mr Wong's contention that it was only by error that unit 2 did not get exclusive use of the land.10 Further, and in any event, as the Tribunal pointed out, an entitlement to exclusive use does not give rise to a right to construct. Thus, even if what Mr Wong contended was the mistake in the bylaws had been corrected, so that the bylaws permitted exclusive use, that would not have altered the fact that Mr Wong was not entitled to construct a fence or wall without the written approval of all other owners and without the approval of the strata company.
23 Ground 5 requests that this court look at the matter in a reasonable manner. That is not the task of this court. The function of this court is not to review the merits of the Tribunal's decision. The limited role of the court is to consider whether the Tribunal has made any error of law. For the reasons I have explained, and for the further reasons below, nothing in Mr Wong's grounds of appeal raises any arguable question of law.
24 By ground 6, Mr Wong contends that Mrs Reid did not have power to make an application for the enforcement of the bylaws, or for the remedying of a breach of the strata company bylaws, and that that was the substance of her application.