ZHAO and PACKER
[2025] WASAT 88
•26 AUGUST 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: ZHAO and PACKER [2025] WASAT 88
MEMBER: MS R PETRUCCI, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
(FINAL WRITTEN SUBMISSIONS FILED 14 JULY 2025)
DELIVERED : 26 AUGUST 2025
FILE NO/S: CC 816 of 2024
BETWEEN: DONG HUA ZHAO
First Applicant
SHAO JUAN FAN
Second Applicant
AND
LYNETTE PACKER
First Respondent
STRATA ADMINISTRATION SERVICES PTY LTD
Second Respondent
Catchwords:
Strata Titles Act 1985 (WA) - Two-lot scheme - Commercial premises - Application by owners to authorise a member of the strata company to make an application on behalf of the strata company under s 198(1) to have strata manager removed - Factors to consider if strata company unreasonably refused to make application to the Tribunal - Whether strata company unreasonably refused to make the application - Turns on own facts
Legislation:
State Administrative Tribunal Act 2004 (WA), s 9, s 60(2)
Strata Titles Act 1985 (WA), s 3, s 120(2), s 197(2), s 198(1)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| First Respondent | : | N/A |
| Second Respondent | : | N/A |
Solicitors:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| First Respondent | : | N/A |
| Second Respondent | : | N/A |
Case(s) referred to in decision(s):
Carr and The Owners of 252 Cosy Corner Road Kronkup Survey-Strata Scheme 55030 [2024] WASAT 132
REASONS FOR DECISION OF THE TRIBUNAL:
This is the second dispute concerning Strata Plan 40695 (strata plan) which is comprised of two lots which are both occupied by tenants and are used for commercial purposes. Mr Zhao and Ms Fan are the owners of Lot 2. The decision for the first dispute concerning this strata plan was published by the Tribunal on or about the same time as this matter: Zhao and The Owners of 5 Wimbledon Street Beckenham Strata Scheme 40695 [2025] WASAT 87 (First Decision).
Following the removal of Strata Administration Services Pty Ltd (SAS) as a respondent in the first proceeding on 29 September 2023 (see First Decision at [8]), Mr Zhao and Ms Fan, on 14 November 2023, commenced these proceedings in the Tribunal under s 198(1) of the Strata Titles Act 1985 (WA) (ST Act) against SAS. Mr Zhao and Ms Fan seek orders from the Tribunal that:
(a)The Owners of 5 Wimbledon Street Beckenham Strata Scheme 40695 (strata company) has unreasonably refused to make an application to the Tribunal to have SAS removed; and
(b)Mr Zhao and Ms Fan are authorised to make the application to the Tribunal to have SAS removed as the strata manager of the strata company.
At the first directions hearing in this matter, on 29 November 2024, the Tribunal removed SAS as the respondent and joined Ms Lynette Packer the owner of Lot 1, as the respondent. However, this was corrected on 23 December 2024 when the Tribunal re-joined SAS as the second respondent.
In summary, Mr Zhao and Ms Fan say there is a fundamental difference of opinion between them and Ms Packer as to how the strata company is being run including that SAS, as the strata manager, has not consulted with the council[1] in regards to anything required to be done under the ST Act.[2]
[1] 'Council' is defined in s 3 of the ST Act as the governing body of the strata company.
[2] Mr Zhao and Ms Fan's submissions filed with the Tribunal on 16 June 2025 at page 3.
Mr Zhao and Ms Fan say they made this application against SAS because it is their contention that there is no strata management agreement in place between the strata company and SAS, and even if there is a strata management agreement, SAS has breached numerous provisions of the ST Act and therefore SAS should be removed as the strata manager.
Both Ms Packer and SAS reject Mr Zhao's and Ms Fan's position and say the application should be dismissed.
In the following reasons I explain why Mr Zhao and Ms Fan's application is unsuccessful and is therefore dismissed.
Procedural history
There were no programming orders made by the Tribunal in this matter from late December 2024 until 7 April 2025 which was the date of the final hearing in the First Decision.
At a directions hearing, on 7 April 2025, I ordered Mr Zhao and Ms Fan to file their written statement setting out the grounds in support their application for an order under s 198(1) of the ST Act that the strata company has unreasonably refused to make an application to the Tribunal to have SAS removed.
According to Mr Zhao and Ms Fan, SAS has acted as the strata manager for the 'purposes of managing the [s]trata [c]ompany's affairs such as general meetings, undertaking insurance, managing the common areas[.]'[3]
Stay application
[3] Ibid at page 1.
Mr Zhao and Ms Fan sought to stay this proceeding pending the decision in matter CC 1171 of 2023, that is the First Decision (stay application).
The reason given by Mr Zhao and Ms Fan for the stay application was the:[4]
… underlying issues of both [CC] 1171/2023 and [CC] 816/2024 are effectively the same. The reason why we brought application [CC] 816/2024 in the first place was that on numerous previous occasion we tried to add the 2nd respondent as a party to the matter but were denied on each occasion.
Therefore depending on [the] decision of the Tribunal in matter [CC] 1171/2023 it may be moot whether [CC] 816/2024 needs to proceed at all since the requested relief sought by the [a]pplicants is the same in both matters.
[4] Mr Zhao's and Ms Fan's letter filed on 16 April 2025.
Both SAS and Ms Packer objected to the stay application.
On 12 May 2025, I refused Mr Zhao's and Ms Fan's stay application for the following reason. SAS is not a party in matter CC 1171 of 2023 (the First Decision) and could not be in that proceeding because SAS is not a 'scheme participant' as that term is defined in s 197(2) of the ST Act.
Having refused Mr Zhao's and Ms Fan's stay application, I extended the time to 16 June 2025 for them to comply with the earlier order requiring them to file their grounds in support of their application for an order under s 198(1) of the ST Act as well as to file a copy of all the documents on which they intend to rely.
I also made orders for the respondents to each file their reply including to file a copy of all documents on which they intend to rely by 4 July 2025.
Determination on the documents
A representative from SAS did not attend the directions hearing on 14 July 2025. However, Mr Zhao and Ms Fan and Ms Packer did attend that directions hearing and requested for the matter to be determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). An order that the matter be determined on the documents was made the same day.
Issue
The sole issue for determination in this matter is whether the strata company has unreasonably refused to make an application to the Tribunal to have SAS removed as its strata manager.
If, and only if, I find that the strata company has unreasonably refused to make the application, then I may exercise the Tribunal's statutory powers to make the order sought by Mr Zhao and Ms Fan, that is, to authorise, by order, for Mr Zhao and Ms Fan to make the application on behalf of the strata company to have SAS removed as its strata manager.
If I find that the strata company has not unreasonably refused to make the application, then Mr Zhao's and Ms Fan's application fails and must be dismissed.
Mr Zhao's and Ms Fan's position
Mr Zhao and Ms Fan in their written submissions state they feel they are fighting on the following three fronts:[5]
(a)Ms Packer does not have any issues with the management of the strata company and she delegated her voting rights at AGMs to SAS;
(b)SAS has on multiple occasions disregarded their rights and at times ignored them even though they are members of the strata company and have voting rights whereas SAS has no strata management contract; and
(c)GV Lawyers were engaged by either Ms Packer or SAS but somehow act for the strata company.
[5] Ibid at page 5.
It is because of the above three fronts, that Mr Zhao and Ms Fan say they had 'no choice' but to take action on behalf of the strata company to rectify the issue of SAS acting as the strata manager.[6]
[6] Ibid.
In their written submissions of 16 June 2025,[7] Mr Zhao and Ms Fan seek to raise same issues as raised in the First Decision. They also seek to rely on the documents filed for the First Decision.
[7] Ibid at pages 1 to 5.
Ms Packer's position
In her written submissions, Ms Packer put her position as follows, in summary:[8]
•she is the original owner of Lot 2 which Mr Zhao and Ms Fan now own. She agrees for SAS to act as the strata manager;
•SAS has a trustworthy banking system which secures funds to be used by the strata company for maintaining the common property;
•SAS provides agendas and minutes of meetings and have kept her up to date regarding any matters arising on the strata complex (as she does not reside in Western Australia);
•she signed a proxy form appointing SAS to vote on her behalf. This is a right she has as a lot owner;
•she remains perplexed and deeply concerned that Mr Zhao and Ms Fan have chosen not to honour their obligation to pay the contributions (strata levies);
•she sees no just reasons for SAS' role as strata manager to be terminated; and
•SAS on many occasions tried to answer questions and clarify strata issues raised by Mr Zhao and Ms Fan but they chose to refuse to accept the information SAS provided.
[8] Ms Packer's submissions filed with the Tribunal on 1 July 2025 at pages 1 to 3.
SAS' position
SAS made the following written submissions, in summary:[9]
•the strata company has not received a request from Mr Zhao and Ms Fan to make an application under s 198(1) of the ST Act;
•this is yet another attempt to prolong the already lengthy process in matter CC 1171 of 2023 (First Decision) where Mr Zhao and Ms Fan do not like the fact they have a smaller unit entitlement as compared to that of Lot 1;
•SAS has been the strata manager since 2002 and there have never any issues raised by Mr Zhao and Ms Fan until recently in 2022;
•the actions of Mr Zhao and Ms Fan have caused financial pressure on the owner of Lot 1 and on SAS. SAS have not been paid their fees which stands at $18,939.68. Further, due to the actions of Mr Zhao and Ms Fan, legal fees in the amount of $17,851.16 is outstanding. Finally, Mr Zhao and Ms Fan as the owners of Lot 2 owe $49,358.38 in outstanding contributions (administrative fund levies including interest) going back to October 2020. The financial pressure resulted in an increase in levies to cover the insurance premium for the strata complex;
•Mr Zhao and Ms Fan have been afforded numerous occasions by SAS to answer their questions;
•Mr Zhao and Ms Fan's commercial tenant pays the outgoings yet they have withheld paying their contributions (administrative fund levies) to the strata company; and
•numerous opportunities were presented to Mr Zhao and Ms Fan for the lawyers to stand down and for SAS to remove themselves as the strata manager but those offers were declined each time.
[9] SAS' submissions filed with the Tribunal on 1 July 2025 at pages 1 to 2.
Consideration
Discretionary power
It is useful to start by setting out s 198(1) of the ST Act. It relevantly provides:
198.Procedure
(1)The Tribunal may, on application by a member of a strata company, if it is satisfied that a strata company has unreasonably refused to make an application to the Tribunal under this Act —
(a)authorise the member to make the application on behalf of the strata company; and
(b)…
As already stated, and is repeated here, if I find that the strata company unreasonably refused to make an application to the Tribunal to remove SAS as the strata manager, then I may exercise the Tribunal's discretionary statutory power to authorise Mr Zhao and Ms Fan to make the application on behalf of the strata company.
The discretion conferred by s 198(1) of the ST Act to authorise a member of the strata company (an owner) to essentially step into the shoes of the strata company to make the application that the strata company could make, is not limited by any mandatory considerations. However, that is not to say that the statutory power is not without limitation. As stated by the Tribunal in previous decisions such as in Carr and The Owners of 252 Cosy Corner Road Kronkup SurveyStrata Scheme 55030 [2024] WASAT 132 at [139] in order to determine the boundaries of the statutory discretionary power, regard must be had to the scope, subject matter and purpose of the statutory scheme that creates and confers on the Tribunal the discretion to authorise a member of the strata company to make the application on behalf of the strata company.
The scope and purpose of the ST Act provides limits on the exercise of the statutory powers. The ST Act, by its Long title, provides for among other related purposes, the governance and operation of the strata titles schemes. The Tribunal's statutory task, as revealed by considering the ST Act as a whole and, in particular, s 198(1) is that if the Tribunal finds that the strata company unreasonably failed to make the application that Mr Zhao and Ms Fan seek to make, that is, an application to have SAS removed as the strata manager, then the Tribunal may authorise Mr Zhao and Ms Fan to proceed with the application on behalf of the strata company.
Importantly, the Tribunal's statutory discretionary power is subject to the presumption of law that the legislature intends the power to be exercised reasonably. Section 198(1) of the ST Act is to be construed accordingly.
Exercise of discretion
Mr Zhao and Ms Fan take issue with what they say is 'excessive fees' charged by SAS. They also take issue with the 'overall conduct' by SAS.[10] In particular, Mr Zhao and Ms Fan say they raised the following issues with SAS because they did not have Ms Packer's details:
•excessive fees;
•strata manager contract;
•raising of issues at the AGMs but they were dismissed, no votes were ever taken for any resolutions and their concerns are not reflected in the minutes of the AGMs;
•GV Lawyers were engaged by Ms Packer and SAS to act as the legal representative for the strata company. Further, GV Lawyers purported to act for the strata company even where the cost agreement was only signed by Ms Packer but not them; and
•SAS obtained Ms Packer's approval to engage GV Lawyers to commence the proceeding against them in the Magistrates Court and in the proceedings before the Tribunal without approval of the strata company, yet they have to go through 'hoops to merely get an action started under s 198(1)'.
[10] Mr Zhao's and Ms Fan's submissions filed with the Tribunal on 16 June 2025 at page 3.
Ms Packer does not have the same concerns as Mr Zhao and Ms Fan. Rather, Ms Packer states there is no just reason for SAS' role as the strata manager to be terminated.[11]
[11] Ms Packer's written submissions filed with the Tribunal on 1 July 2025 at page 2.
SAS is of the same view as Ms Packer.[12]
[12] SAS' submissions filed with the Tribunal on 1 July 2025 at pages 1 to 2.
In regards to the issues raised in the First Decision, it is not necessary for me revisit them in this decision other than to state that Mr Zhao and Ms Fan did not make out their claims.
In regards to the other concerns raised by Mr Zhao and Ms Fan as set out in their written submissions (see above at [21] to [23]), Ms Packer position is clear - she does not have any issues with the management of the strata company and that she delegated her voting rights at AGMs to SAS. An owner of a lot may appoint a proxy to vote on their behalf (provided the owner is not unfinancial, subject to some exceptions as set out in s 120(2) of the ST Act). This is what Ms Packer had done. There is nothing in this claim by Mr Zhao or Ms Fan that persuades me that the strata company has unreasonably refused to make an application to the Tribunal to remove SAS.
Mr Zhao and Ms Fan complain that SAS has on multiple occasions disregarded their rights as the owners of Lot 2 and at times ignored them even though they are members of the strata company and have voting rights. As already stated in the First Decision, and repeated here, having made the finding then the declaration and order about the administrative fund, as well as the finding that Mr Zhao and Ms Fan have been 'unfinancial' members of the strata company from when they did not pay the strata levies in or about July 2020, there is no merit to their argument that their rights were ignored. They are not entitled to vote on ordinary resolutions (other than on matters as set out in s 120(2) of the ST Act) when they are unfinancial. Further, I made a finding in the First Decision and then made the declaration and order that SAS was validly appointed under the 2020 strata management agreement and the 2022 strata management agreement. In summary, there is nothing in this claim by Mr Zhao and Ms Fan that persuades me that the strata company has unreasonably refused to make an application to the Tribunal to remove SAS.
Finally, Mr Zhao and Ms Fan complain that GV Lawyers were engaged by either Ms Packer or SAS but somehow acted for the strata company. As already stated in the First Decision, and repeated here, I made the finding that GV Lawyers was validly appointed. Therefore, there is nothing in this claim by Mr Zhao and Ms Fan that persuades me that the strata company has unreasonably refused to make an application to the Tribunal to remove SAS.
Conclusion
The Tribunal's objectives requires that it achieve the resolution of matters according to the substantial merits of the case with as little formality and technicality as is practicable (s 9 of the SAT Act).
Reflecting back on the orders sought by Mr Zhao and Ms Fan (see above at [2]), and the findings reached, for all of the reasons set out above, Mr Zhao's and Ms Fan's application under s 198(1) of the ST Act is unsuccessful and must be dismissed.
Orders
The Tribunal orders:
1.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
26 AUGUST 2025
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