WRIGHT and LIEW

[2006] WASAT 40

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION:   WRIGHT and LIEW [2006] WASAT 40

MEMBER:   DR B DE VILLIERS (MEMBER)

HEARD:   DETERMINED ON THE PAPERS

DELIVERED          :   17 FEBRUARY 2006

FILE NO/S:   CC 3813 of 2005

BETWEEN:   FRANK WRIGHT

Applicant

AND

KOON SIONG LIEW
Respondent

Catchwords:

Strata titles – Use of common property – Parking uses – Damage to common property – Insurance of a lot

Legislation:

State Administrative Tribunal Act 2004 (WA), s 95(1)

Strata Titles Act1985 (WA), s 35(1)(c), s 36(1)(a), s 53B(1), s 53B(2), s 53C(1), s 81(1), s 83(1), Sch 1 by­law 1(b), Sch 1 by-law 2(a), Sch 1 by­law 2(b), Sch 1 by­law 2(c), Sch 1 by­law 2(d), Sch 2 by­law 1, Sch 2 by­law 2, Sch 2 by­law 12(b)

Result:

Application succeeds in part
Orders made

Category:    B

Representation:

Counsel:

Applicant:     Self­represented

Respondent:     Self­represented

Solicitors:

Applicant:     Self-represented

Respondent:     Self-represented

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

Nil

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The application concerns a number of disputes regarding the use of common property for parking purposes, damage caused to common property, insurance of a lot and noise emanating from a lot.  Mr Wright (applicant) alleged that Mr Liew (respondent), or his visitors, park vehicles in areas of common property that are not designated for such use.  He also contended that Mr Liew has caused damage to common property when fluid leaked on the bitumen and caused erosion.  He also complained about noise emanating from the lot of Mr Liew.  Finally, he sought an order to oblige Mr Liew to pay his insurance on the lot.

2. The Tribunal found that Mr Liew has been using the common property in an unauthorised manner and that he has caused damage to it.  Orders are made for Mr Liew and his visitors to refrain from parking in areas other than designated parking bays.  He is also ordered to repair the damage caused by the corrosive working of the transmission fluid.  The noise complaint is dismissed.  The application regarding insurance is dismissed.

Background

1. Mr Wright lodged an application on 16 December 2005 pursuant to s 81(1) of the Strata Titles Act 1985 (WA) (ST Act). Mr Wright alleges that Mr Liew or his visitors have breached several provisions and by‑laws of the ST Act. A directions hearing was held on 12 January 2006, at which programming orders were made for the parties to make further submissions. Mr Liew was not in attendance at the directions hearing.

2. Mr Wright confirmed that a copy of the application had been served on Mr Liew.  Mr Liew made a very short submission in response to the application.  He did not address any of the complaints in substance, but indicated that he attempted to discuss the concerns with Mr Wright.

3. Strata Plan 41707 comprises two lots, which are described by the strata plan as two single storey concrete panel and tin roof commercial units.  Mr Wright is the proprietor of unit 2 and Mr Liew is the proprietor of unit 1.  The two units are slightly different in size.  The boundaries of the lots are the buildings as shown on the strata plan.  The remainder of the parcel is common property.  No exclusive use area of common property has been registered.  Parking areas are demarcated along the sides of the common property.

4. Mr Wright sought orders to address four purported breaches of the ST Act.

5. I will deal with each of the alleged breaches separately:

Parking

1. According to Mr Wright, all the parking spaces are often occupied by clients of Mr Liew, they regularly double park and sometimes block the entrance to the complex.  Mr Wright tendered several photographs to demonstrate how cars were parked in non‑parking common areas and how the entrance was blocked.  In some instances, the unauthorised parking of vehicles has prevented or obstructed Mr Wright and his visitors from having free access to his lot and to the common property.

2. Mr Liew did not respond to the concerns raised by Mr Wright in regards to the parking.

3. There are several provisions of the ST Act that bear relevance to the use of the common property for parking of vehicles.

   •Schedule 1 by‑law 2(a) requires from Mr Liew to use and enjoy common property in such a manner as not to unreasonably interfere with the use and enjoyment thereof by Mr Wright.

   •Schedule 1 by‑law 2(c) requires from Mr Liew to take all reasonable steps to ensure that his visitors do not behave in a manner that is likely to interfere with the peaceful enjoyment of Mr Wright of his lot or the common property.

   •Schedule 1 by‑law 2(d) requires from Mr Liew to take all reasonable steps to ensure that his visitors comply with the by-laws regarding parking.

   •Schedule 2 by‑law 1 determines that no person may park a vehicle on common property without the approval of the strata company.

   •Schedule 2 by-law 2 provides that Mr Liew shall not obstruct the use of the common property by any person.

4. The Tribunal accepts the evidence of Mr Wright that Mr Liew and some of his visitors have breached one of more of the above provisions of the ST Act by parking on common property without authorisation.  It is clear from the photographs that vehicles are parked on common property outside the parking areas.  The photographs also show that vehicles are parked in the entrance gate.

5. The owners have not come to any agreement as to the allocation of parking areas to themselves.  There is no impediment for the clients of one of the owners to park on all the parking areas.

6. Parking on the common property must, however, be limited to the bays that are clearly demarcated for such purpose.  The remainder of the common property must be kept open to enable proprietors and visitors to have free and unobstructed access to the respective lots.

7. An order should therefore be made to give effect to this finding.

Noise levels

1. Mr Wright has complained to the City of Canning about the noise that is emitted by the dyno‑machine in unit 1.  It appears from the evidence that some steps have been taken by Mr Liew to reduce the noise.

2. At the directions hearing leave was granted for the application regarding noise to be withdrawn pursuant to actions that were taken by the city.  However, in a letter dated 24 January 2006 Mr Wright again raised complaints about the noise.

3. The ST Act has several provisions of relevance to this complaint.

   •Schedule 1 by‑law 2(b) determines that Mr Liew may not use his lot in a manner that may cause a nuisance to Mr Wright.

   •Schedule 2 by-law 12(b) requires that Mr Liew does not make undue noise in or about any lot or on common property.

4. The answer to the question whether these by‑laws are breached depends on the circumstances of each application.  What constitutes a nuisance in a residential area may not necessarily constitute a nuisance in an industrial area.  The Tribunal must therefore have regard for the type of activity that causes the complaint and the use of the buildings according to the strata plan and zoning.

5. The Tribunal is not satisfied that Mr Wright has shown that either of these by‑laws has been breached.  The units are demarcated for a commercial use that carries with it the likelihood of increased noise.  Mr Wright did not submit an expert report or other evidence that could support his contention that the noise is unreasonable.

6. According to Mr Wright's evidence, the City of Canning has been called out to the site and they have issued restrictions on the dyno‑machine and installation of noise reduction measures.  If he is not satisfied with the outcome of these measures, Mr Wright should liaise with the City to enforce the relevant health regulations or in the alternative, lodge a new application with the State Administrative Tribunal and provide new evidence to substantiate the claim under the ST Act.

7. The application for an order should therefore be dismissed.

Damage to common property by transmission fluid

1. Mr Wright alleges that Mr Liew or his clients have caused damage to the common property when transmission fluid was spilled from a car Mr Liew had been working on.  Several photographs were submitted by Mr Wright to show the damage that was caused when the fluid was spilled.  Mr Liew did not dispute the assertion.  The Tribunal therefore accepts the evidence and photographs of Mr Wright.

2. Mr Wright sought an order pursuant to Schedule 1 by‑law 1(b) for Mr Liew to repair and maintain his lot. A difficulty arises, however, from the application since the damage has not been caused to the lot of Mr Liew but to the common property. The obligation to repair the damage therefore does not arise from Schedule 1 by‑law 1(b) but from s 35(1)(c) and s 83(1) of the ST Act.

3. Pursuant to s 35(1)(c) of the ST Act the strata company is responsible for keeping the common property in good repair, to maintain it and to repair any damage caused to it. The costs incurred to repair damage is usually paid from the administration account of the strata company (s 36(1)(a)) or it can be reclaimed from the owner of a lot where the owner caused the damage.

4. Section 83(1) empowers the Tribunal to make orders for the settlement of a dispute with regard to the exercise of a function under the Act. The Tribunal can order a proprietor to take remedial action.

5. In light of the fact that the strata company in this matter is not functional and that it appears from the evidence that the owners do not have a sound working relationship, the Tribunal deems it is appropriate that Mr Liew must be ordered to take corrective measures to repair the damage that has been caused by the leaking of the transmission fluid.

6. In regard to the actual damage that was caused by the leaking of the transmission fluid, the Tribunal finds that the dark stain that runs from the parking bay to the gate is not as serious as to require any remedial steps.  However, it appears that the fluid eroded the bitumen where the vehicle was parked.  It is clear from the photographs that the fluid caused damage to the bitumen and holes are clearly visible.  These holes must be fixed by the Mr Liew in order to prevent further corrosion and damage.

Insurance contribution

1. Mr Wright alleges that Mr Liew has failed, as from 14 December 2005, to pay his share of the insurance on the building.  In his further submission dated 24 January 2006, Mr Wright confirmed that he had secured insurance for his lot but he contends it would be beneficial if the same insurer insured both buildings.

2. The ST Act does not require that individual lots must be jointly ensured. Section 53B(1) leaves it at the discretion of the proprietor of each lot to take out insurance with respect to a building on his lot. There is no evidence that the strata company in this application has decided that it would insure the buildings in a manner provided for in s 53B(2).

3. The application is limited to insurance to the buildings, but the Tribunal notes that pursuant to s 53C(1) the strata company is also required to insure the common property unless it decides by unanimous resolution not to ensure the common property.

4. The Tribunal does not have any evidence in regard to the insurance arrangements made by Mr Liew in respect of his lot/building.  Although it may make commercial sense for the parties to use the same insurer, there is no obligation on Mr Liew to use the same company as Mr Wright.

5. The application should therefore be dismissed.

Orders

1.Mr Liew must adhere to the demarcated areas for parking and must take the necessary steps to ensure that his visitors do not park in areas that are not clearly marked for such purpose.  The remainder of the common property may not be used for parking in order to ensure free and unobstructed access to the respective lots.

2.The application for an order in regard to alleged noise levels emanating from lot 1 is dismissed.

3.Mr Liew must within 60 days from the date of these orders fix and repair at his cost the holes in the bitumen that were caused by the leaking of transmission fluid onto the common property.

4.The application for an order in regard to the insurance of the lot 1 is dismissed.

5.If Mr Liew fails to comply with Order 1 and Order 3, the provisions of s 95(1) of the State Administrative Tribunal Act 2004 (WA) shall apply which may attract a penalty of up to $10 000.

I certify that this and the preceding [32] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

DR B DE VILLIERS, MEMBER