WOODS and THE OWNERS OF ELANORA PARK STRATA PLAN 3025

[2006] WASAT 82

WOODS and THE OWNERS OF ELANORA PARK STRATA PLAN 3025 [2006] WASAT 82

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 82
Act:	STRATA TITLES ACT 1985 (WA)
Case No:	STR:126/2004	Heard:	DETERMINED ON THE PAPERS
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	29/03/06
No of pages:	11	Judgment Part:	1 of 1
Result:	Application granted in part
Category:	B
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Parties:	LOUISA MARIE WOODS THE OWNERS OF ELANORA PARK STRATA PLAN 3025
Catchwords:	Strata Titles Act 1985 (WA) – Declaration as to use of car bays – Alleged harassment of tenant – Procedure to be followed for imposition of penalty
Legislation:	State Administrative Tribunal Act 2004 (WA) State Administrative Tribunal Regulations 2004 (WA), reg 28 Strata Titles Act 1985 (WA), s 35(1)(c), s 42A, s 42(c), s 81(10), s 103I, Pt II Sch 7
Case References:	Nil Nil
Orders	1) It is declared that the three car bays between Lot 11 and Lot 12 be available for visitors' parking subject to prior written approval being obtained from the respondent.,2) The Tribunal declines to make any finding that the conduct of Mrs Piper and Mr Kampert constitutes a criminal offence but the conduct in issuing a fine was not authorised by the Strata Titles Act 1985 (WA).,3) The respondent and its officers are to refrain from:, (a) placing any sign stating "No Visitors Parking" in the proximity of the above three car parking bays; and, (b) taking any steps to impose any fine or penalty for breach of any by­laws, unless a by­law is passed pursuant to s 42A of the Strata Titles Act 1985 (WA), and in that event, such steps are to be limited to those necessary to enable the respondent to apply for the imposition of a penalty under s 103I of that Act.,4) Pursuant to s 81(10) of the Strata Titles Act 1985 (WA), it is ordered that the above orders shall not cease to have any force or effect upon the expiration of the period of two years that next succeeds the making of the orders.,5) The application is otherwise dismissed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : WOODS and THE OWNERS OF ELANORA PARK STRATA PLAN 3025 [2006] WASAT 82 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 29 MARCH 2006 FILE NO/S : STR 126 of 2004 BETWEEN : LOUISA MARIE WOODS

Applicant

AND

THE OWNERS OF ELANORA PARK STRATA PLAN 3025
Respondent

Catchwords:

Strata Titles Act 1985 (WA) – Declaration as to use of car bays – Alleged harassment of tenant – Procedure to be followed for imposition of penalty

Legislation:

State Administrative Tribunal Act 2004 (WA)

State Administrative Tribunal Regulations 2004 (WA), reg 28
Strata Titles Act1985 (WA), s 35(1)(c), s 42A, s 42(c), s 81(10), s 103I, Pt II Sch 7

(Page 2)

Result:

Application granted in part

Category: B

Representation:

Counsel:

Applicant : Self­represented
Respondent : Mrs ML Piper

Solicitors:

Applicant : Self-represented
Respondent : Self-represented

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

Nil

Case(s) also cited:

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicant applied for orders declaring that certain car bays be used for visitors' parking, that the chair of the respondent, Mrs Margaret Louise Piper and a Mr John Kampert were in breach of the Strata Titles Act1985 (WA) (the Act)by committing a criminal offence against a visitor and unlawfully issuing a fine and further that the respondent should be ordered to stop harassing the applicant, her tenant or tenant's visitors and the applicant's property manager.

2 The Tribunal found that a proper discharge of the respondent's duties under s 35(1)(c) of the Actrequired it to control and manage the common property for the benefit of all proprietors by making the three car bays available for visitors' parking. Further, the Tribunal found that Mrs Piper and Mr Kampert were not authorised by the Actto impose a fine for breach of the by-laws which on the uncontested evidence one or other, or both of them had endeavoured to do. Although the Tribunal found also that one or other, or both Mrs Piper and Mr Kampert were involved in the removal of the wheels from a visitor's car to immobilise it, the Tribunal declined to make any finding as to whether that constituted a criminal offence, on the basis that such a finding was beyond the jurisdiction of the Tribunal. Further, the Tribunal was not prepared to make orders "to stop harassment" as the relief sought was of too general a nature. The Tribunal was prepared to make orders addressing the particular conduct of which the applicant complained and which was established in the evidence. The Tribunal observed that the applicant and her tenant were not blameless and that the by-laws clearly obliged the tenant to obtain written approval prior to the use of the parking bays by a visitor.

3 The Tribunal made orders requiring the respondent to refrain from placing any sign in the vicinity of the car bays stating "No Visitors Parking" and from taking any steps to impose a fine or penalty unless a by-law was passed pursuant to s 42(c), in which event, any steps taken were to be limited to those necessary to apply to the Tribunal for the imposition of a penalty under s 103I of the Act.

Application

4 On 15 November 2004, the applicant lodged an application with the Strata Titles Referee seeking the following orders.

(Page 4)

"1. Declare the 3 car bays between lots 11 and 12 be for use of residents [sic] visitors.

2. Find Margaret Louse [sic] Piper and John Kampert in breach of Strata Title Act by committing a criminal offence against a visitor to the complex and unlawfully issuing a fine.

3. Find Body Corporate has not properly elected a Council in relation to Section 4(4) of Schedule 1 of by-laws.

4. Find by-laws added in 1996 incorrectly on Schedule 1 and remove said by-laws.

5. Stop harassing owner, tenant, tenants [sic] visitors and property manager.

6. John Henry Kampert repay monies to the Strata Company he has received in 2003 and 2004 for services as Administrator Manager when he was not reappointed in 2003 and 2004 meetings."

5 The application was transferred to the State Administrative Tribunal on 1 January 2004, pursuant to the transitional provisions of the State Administrative Tribunal Act 2004 (WA).

6 By virtue of reg 28 of the State Administrative Tribunal Regulations 2004 (WA), the matter is taken to have been commenced in the Tribunal. Further, the Tribunal may have regard to any record of the former adjudicator, and I have regard to the record in relation to this matter.

7 The Tribunal held a series of directions hearings in order to program the matter in the most appropriate manner and to ensure all available evidence was placed before the Tribunal. Because of a deficiency in the evidence and lack of jurisdiction to make any order against Mr Kampert, the application for any relief against him was withdrawn as was the application for relief in orders 3, 4 & 6 above. The Owners of Elanora Park Strata Plan 3025 was added as the respondent.

8 The matter progressed slowly. It was held in abeyance at one stage because of the prospect of the respondent passing a new by-law concerning visitor parking which would have satisfied the applicant. That did not occur and there was subsequently further delay as a result of

(Page 5)

uncertainty as to whether or not the respondent had received copies of all of the documentation. On 15 February 2006, the chairman of the respondent, Mrs Margaret Piper, acknowledged that she had received a full set of the papers together with orders made by the Tribunal made on 18 November 2005. She advised that the respondent did not wish to examine the Tribunal file to ensure that it was in a position to respond to submissions received from other parties and she advised that it was not intended to make any further submissions beyond those already filed.

Evidence and submissions

9 The applicant filed a copy of Notification G 118236 AE (Notification), registered 6 March 1996. The Notification shows that the optional additional by-laws as set out in Schedule 2 to the Strata Titles Act1985 (WA) (the Act) were adopted as additional Part II by-laws of the strata company and numbered 4 – 15 respectively. It was further resolved that the by-laws in Part II, Schedule 1 of the Act, were added to, relevantly, to include a by-law 16 as follows:

"16. No permanent parking of residents' vehicles on common property."

10 Schedule 2, by-law 1 provides as follows.

"1. Vehicles

A proprietor, occupier, or other resident of a lot shall not park or stand any motor or other vehicle upon common property except with the written approval of the strata company."

11 A letter from the City of Rockingham dated 28 October 2004, signed for P Ricci, Coordinator Planning Operations, states that the Development Approval issued by the Council for the parcel show the car parking bays between Units 11 and 12 as being set aside for visitors. The attached plan however, has three bays marked with the endorsement "car stands". The area in question is part of the common property.

12 The applicant has not filed a complete copy of the strata plan but there is no issue between the parties as to the by-laws as they stand. It was initially part of the applicant's case that the by-laws added in 1966 were added incorrectly on Schedule 1 and should be removed. The application for that relief, as stated above, was withdrawn.

(Page 6)

The applicant's case

13 The applicant is the owner of Lot 10 on strata plan 30205. During all relevant periods, the lot was leased to a tenant.

14 In the week prior to 13 October 2004, a visitor of the tenant had the front wheels of his motor vehicle removed. There is no dispute this occurred. A letter, on the letterhead marked "The Owners of Elanora Park Strata Plan 30205" dated 13 October 2004, sets out the facts relevant to this event. It states "that the chair of the company tried to locate" the owner of the offending car and that "[a]s the owner could not be contacted, action was taken to immobilise the vehicle at least cost and to leave a note as the vehicle with the above phone [sic] number". It is signed by someone under the heading "Administrative Assistant". The letterhead gives the address of the strata company as care of Mrs Piper at the above address and reflects the telephone number [phone]. The letter was enclosed in an envelope which has a return address "c/- Ms M Piper U 9 – 10 Elanora Drive, Cooloongup WA 6168".

15 A note was left on the vehicle in the following terms:

"To The Owner

To recover your front wheels please phone [phone] and arrange to pay your fine."

16 On 21 October 2004, the applicant's tenant reported that a sign had been erected in the vicinity of the three parking bays already referred to stating "No Visitor Parking".

17 The correspondence shows that the respondent complained to the applicant about further incidents involving the parking of a motor vehicle on the common property on 6 and 7 November 2004 "without obtaining the prior written consent from the company" and further stating, "Please note such consent has never been refused, as no consent has been requested". The circumstances relating to this complaint are summarised in a letter dated 7 November 2004, on the same letterhead of the respondent. The letter was signed by the "Administrative Assistant to the Council of the company".

18 A minute of the Annual General Meeting held on 16 February 2003, reflects that Mr John Kampert was in attendance as administrative assistant to the Council and it is noted that Mrs Piper, and her response referred to below, states that Mr Kampert "is not our Administration Manager" but goes on to outline that "John still helps all our council

(Page 7)

members and advisors and keeps all our records and does any correspondence, gardening, weed killing on driveways and antkilling [sic] etc. etc".




The respondent and supporting submission

19 A letter was received from Mrs Piper dated 2 December 2004. At that stage, the respondent had not been added as such, the application having originally been brought against Mrs Piper and the applicant. Nevertheless, by Mrs Piper subsequently indicating in February 2006, that it was not intended to file any further submissions, I take it that the respondent relies on her above letter. The letter, in summary, reflects as follows.

1. That the three car bays are common property which is used principally for maintenance vehicles. Reference was made to the above mentioned by-laws to the effect that no permanent parking of residents' vehicles was permitted on common property and that no motor vehicle was to be parked on common property except with the written approval of the strata company.

2. In response to the second order sought, Mrs Piper simply said:


"What is this? Fiction? I know nothing of any offence against any visitor or resident nor any unlawfully issuing of a fine. I have a Police clearance for my charity work and try to keep everyone happy."

3. In response to the complaint about harassment, Mrs Piper set out a recital of various steps taken by her, which she stated were necessary because the applicant had not provided adequate contact details.

4. That she had attempted to make the tenant welcome but that "[a]fter getting a few untruths back on the roundabouts I haven't said another word to her".

5. As stated above, she expressed the view that Mr Kampert is not the administration manager but outlined the extent to which he gave assistance, including the writing of correspondence.

20 A response to the application was received by Mr Chris Edwin McMahon, the owner of Lot 11. Mr McMahon stated that the land to be declared visitors parking was on common property, the use of which should not be made exclusively available to anyone styling themselves a visitor. Common property should be controlled by the council of the company taking into account the peaceful enjoyment of the
(Page 8)

complex by all occupiers. He further stated that a granting of the application would discourage him and any other owner from being a member of the council of the company which would result in an increase of future levies and reduce the economic value of his property.

Consideration

21 In the absence of any direct evidence contradicting that of the applicant, I accept and find that steps were taken, purporting to be on behalf of the strata company, to impose a fine on a visitor parking in the parking bays in question. Further, that the person who wrote the correspondence referred to above, on behalf of the respondent, was Mr Kampert. The letter of 13 October 2004 shows that "the chair of the company" was involved in trying to locate the owner of the vehicle and further, gave Mrs Piper's contact details. Mrs Piper's base denial is equivocal, it is not clear whether the conduct complained of is disputed or merely that the conduct constitutes an offence or is unlawful. She gave no details explaining the correspondence written on behalf of the respondent which implicates her.

22 I find on a balance of probability that one or other, or both Mrs Piper and Mr Kampert were involved in the removal of the wheels from the vehicle.

23 I also find that on or about 20 or 21 October 2004, a sign was placed in the vicinity of the parking bays stating "No Visitor Parking".

24 While Mr Kampert may not have been formally appointed to act as a strata manager/administration manager or administrative assistant, it is apparent from Mrs Piper's response that she, as the Chair of the respondent, knew what activities he undertook on behalf of the respondent. It is also implicit from Mr McMahon's response that the present method of operation of the company resulted in a saving of administration costs because the granting of the application would result in an increase in levies. Mrs Piper, in her response, specifically stated in relation to Mr Kampert that, "All of his work saved us thousands of dollars which most appreciate".

25 I find on a balance of probability therefore, that the council of the respondent was aware of Mr Kampert's role and he therefore had an implied authority to act on behalf of the strata company.

26 Mr McMahon, in his response, touched on the essence of the principle which must determine aspects of this application and that is to

(Page 9)

quote him "common property should be controlled by the council of the company taking into account the peaceful enjoyment of the complex by all occupiers".

27 The respondent is entitled, subject to passing of the requisite resolution, to have a by-law to provide for penalties for breach of any specified provision of the by-laws. To impose a penalty, application must then be made to this Tribunal under s 103I of the Act.

28 As there is no specific by-law which has been passed under s 42A and as no application has been made for the imposition of a penalty, the respondent had no right to attempt to impose a fine, which I find it did attempt to do, through one or other or both Mrs Piper or Mr Kampert.

29 It is not appropriate that I attempt to make any finding as to whether or not such conduct constituted a criminal offence. That inquiry is not within the jurisdiction of this Tribunal and is dependent on proper proof beyond any reasonable doubt according to the laws of evidence.

30 Further, the common property must be managed for the benefit of all proprietors – s 35(1)(c) of the Act. As the development approval was passed on the basis that the car bays were at least to be available for visitors parking it is inconceivable, on the evidence before the Tribunal, that any sensible argument could be advanced that it is in the interests of owners as a whole that no visitors parking be available. I find that it was not a proper exercise of the duties of the respondent as reflected in s 35(1)(c) of the Act to erect a sign in the vicinity of the car parking bays stating "No Visitor Parking".

31 The evidence is sufficient to establish harassment to the extent that Mrs Piper and/or Mr Kampert attempted to impose a fine, were involved in the removal of the front wheels of the visitor's motor vehicle and placed a sign aimed at preventing the car bays being used by visitors. The Tribunal will make orders to restrain that conduct, but I do not consider it appropriate that any order be made on a general basis as sought to prevent conduct which might constitute harassment where no specific conduct is established.

32 Notwithstanding the above findings, the applicant and her tenant are not blameless. The above rules clearly reflect that the prior written approval of the strata company was required before a vehicle could be parked on common property. There is nothing in the evidence to suggest that any attempt was made to procure such approval. To the contrary, the letter of 7 November 2004, from the respondent to the applicant,

(Page 10)

specifically states that consent has never been refused as no consent had been requested.

33 While it is unfortunate that it might be unnecessary to enforce such a rule strictly, one may well understand that the need to do so arises, when vehicles are parked for some length of time, without any attempt to obtain even an informal approval.

Orders

34 For the above reasons, the Tribunal orders as follows.

1) It is declared that the three car bays between Lot 11 and Lot 12 be available for visitors' parking subject to prior written approval being obtained from the respondent.

2) The Tribunal declines to make any finding that the conduct of Mrs Piper and Mr Kampert constitutes a criminal offence but the conduct in issuing a fine was not authorised by the Strata Titles Act1985 (WA).

3) The respondent and its officers are to refrain from:


(a) placing any sign stating "No Visitors Parking" in the proximity of the above three car parking bays; and

(b) taking any steps to impose any fine or penalty for breach of any by-laws, unless a by-law is passed pursuant to s 42A of the Strata Titles Act1985 (WA), and in that event, such steps are to be limited to those necessary to enable the respondent to apply for the imposition of a penalty under s 103I of that Act.

4) Pursuant to s 81(10) of the Strata Titles Act1985 (WA), it is ordered that the above orders shall not cease to have any force or effect upon the expiration of the period of two years that next succeeds the making of the orders.

5) The application is otherwise dismissed.

(Page 11)

I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.


___________________________________

MR C RAYMOND, SENIOR MEMBER