THE OWNERS OF 16 MELVILLE PARADE, SOUTH PERTH STRATA PLAN 18919

Strata Titles Act 1985 (WA) - Scheme dispute - Functions of strata company - Council - Duties of members of council - Application for appointment of Administrator of strata company - Breakdown in relationship between owner and member of council - Factors to consider to appoint Administrator - Whether strata company contravened s 91, s 119 or s 137 - Whether strata company contravened s 104 or s 109 - Whether an unelected council - Whether actions of strata company continuing - Whether strata company incapacitated, beset by difficulties or so dysfunctional as to render it unable to function at a satisfactory level - Tribunal proceeding - Whether necessary for Tribunal to intervene to appoint Administrator - Discretionary power to make declarations and orders to resolve scheme dispute or proceeding

Strata Titles (General) Regulations 2019 (WA)

Strata Titles Act 1985 (WA), s 3, s 14, s 47(3), s 91, s 100, s 104, s 109, s 118, s 119, s 137, s 141, s 197(1), s 197(1)(a)(ii), s 197(2), s 197(4), s 199(1), s 200(1), s 200(2)(h), s 200(2)(m), s 200(2)(q), s 202, s 205, s 209, Pt 8 Div 1

Adder Holdings Pty Ltd and The Owners of Harbour Pines Strata Plan 23297 [2022] WASAT 120

Carden and Vallelonga [2017] WASAT 150

Dworakowski and The Owners of 63 Temple Street Victoria Park Strata Plan 26070 [2020] WASAT 45

Fraser and The Owners of Morgan Mews, Strata Plan 45385 [2011] WASAT 102

Gawor and The Owners of Dawesville Caravan Park Old Coast Road Mandurah, Strata Plan No 14644 [2009] WASAT 170

Hockey and Owners of Mount Bakewell Resort Strata Plan 18228 [2013] WASAT 64

Huning and Owners of Glengary 240 Mill Point Road, South Perth, Strata Plan 2684 [2010] WASAT 40

McKinnon v Adams [2003] VSC 116

Parker and The Owners of Timberside Villas - Strata Plan 27426 [2006] WASAT 254

Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228

1. Ms Terri Kathleen Duncan purchased Lot 8 on strata plan 18919 (strata plan) about 25 years ago.
2. After what Ms Duncan's describes as the 'culmination of a six-year ordeal'[1] in which she says she made respectful, meritorious requests around the issues of repair, safety, security and the decision-making process of the strata company,[2] on 19 December 2022, she commenced the proceeding in the Tribunal under s 197(4) of the Strata Titles Act 1985 (WA) (ST Act) seeking the appointment of an administrator for The Owners of 16 Melville Parade South Perth Strata Plan 18919 (strata company) to perform various functions for a period of three months.[3] & [4]
3. The strata company is the body corporate established under s 14 of the ST Act on registration by the Registrar of Titles of the strata titles scheme on 26 February 1990 and comprises nine lots (strata scheme).
4. The strata scheme is located in the suburb of South Perth, and is described on the strata plan as follows:[5]

A three storey brick building containing 9 residential units situated on Lot 6 of portion of Perth suburban Lot 73 on Diagram 75496.

1. Ms Duncan has resided at the strata complex for the past six years. She was a member of the council[6] in 2019 and 2020. Ms Duncan nominated to be a member of council in 2021 but was not elected.
2. Following mediation between the parties which was partly successful, on 23 May 2023 the Tribunal made orders by consent of the parties, amongst other orders, that:

(a) various complaints were withdrawn by Ms Duncan on the basis of a work order issued by the strata company for various works to be completed by 1 August 2023; and

(b) the maintenance and/or replacement of the garage doors complaint was withdrawn by Ms Duncan on the basis that that the strata company acknowledged this issue required the attention of a general meeting.

1. I will return to this order including the garage doors complaint later in these reasons.
2. A number of directions hearings were held including on 11 June 2024, when the Tribunal ordered, by consent of the parties, that the matter before the Tribunal is to proceed on the basis that the issue for determination by the Tribunal is confined as set out in Order 1(a) to the following issue:[7]

Did the council acting for the strata company contravene the ST Act, in particular s 91, s 119 and s 137, such that it is appropriate for the Tribunal to appoint an administrator?

1. Further, at that directions hearing on 11 June 2024, by consent of the parties, the Tribunal recorded the order sought by Ms Duncan in Order 1(b) of the orders as follows:[8]

The Tribunal appoint a suitable person (administrator) to perform the duties of the strata company.

1. In summary, it is Ms Duncan's position that the strata company has not refuted any of the actions of its council over the past six years, and therefore what is in dispute is whether those actions of the council members amount to the strata company being 'dysfunctional'. In other words, Ms Duncan contends that there have been numerous contraventions of the ST Act with the result that the strata company is 'dysfunctional' in so far as its council are not meeting their statutory obligations including that they have failed, coerced and conspired to act against her in this proceeding, they have orchestrated an environment to destroy her character, reputation and standing in the strata complex community and financially and in a way to try to force her to leave the strata complex.[9] & [10]
2. Ms Duncan acknowledges and concedes that various items on the common property and within her lot that required repair or maintenance, that she had previously brought to the attention of the council, have finally been attended to. However, whilst these repairs and maintenance are welcome by Ms Duncan, she strongly asserts that these actions do not remove or exonerate the 'unlawful' prior actions of the strata company.[11]
3. The strata company rejects Ms Duncan's contentions, stating that Ms Duncan has not established any state of affairs that could justify the appointment of an administrator. Further, the strata company urges the Tribunal to dismiss Ms Duncan's application on the basis that there is no utility or any valid tangible purpose that might be achieved by the appointment of an administrator in place of the strata company.
4. Shortly prior to the final hearing, in an effort to resolve the dispute between the parties, the strata company sought to agree with Ms Duncan the functions the administrator would be required to undertake in place of the strata company. Unfortunately, the parties were not able to reach agreement.
5. The proceeding comes within the Tribunal's original jurisdiction (s 209 of the ST Act).
6. In the following reasons, I explain why Ms Duncan's application for an administrator is unsuccessful. The result is that the application is dismissed.

1. The primary issue to be determined in this matter is whether the council acting for the strata company contravened the ST Act, in particular s 91, s 119 and s 137, such that it is appropriate for the Tribunal to appoint an administrator (see above at [8])?
2. Ms Duncan says to answer the primary issue, the following questions require determination:

(a) whether the actions of the strata company satisfy the test of 'dysfunction'?

(b) whether the actions of the strata company are continuing? and

(c) whether the findings in relation to (a) and/or (b) above warrant the intervention of an administrator?

1. If the answer to the primary issue is 'no', then Ms Duncan's application is unsuccessful and will be dismissed.
2. However, if the answer to the primary issue is 'yes', then the following questions require determination:

(a) who should be the appointed administrator? Has that person given written consent to be appointed administrator?

(b) which of the scheme functions is the administrator to perform?

(c) what should the conditions of appointment of the administrator be, if any? and

(d) what should be the term of appointment of the administrator?

1. The amount of evidence put by the parties, in particular Ms Duncan, is voluminous.[12] I now turn to the more significant issues that have swayed me, on balance, to not exercise the Tribunal's discretion to appoint an administrator.
2. The issues I now discuss, after considering whether the Tribunal has jurisdiction to determine Ms Duncan's application, are:
   • Whether the actions of the strata company are 'dysfunctional'?
     • What does 'dysfunctional' mean?
     • Whether the strata company contravened s 91 of the ST Act?
       • Whether strata company decision-making regarding repairs and maintenance is dishonest, unreasonable, oppressive, unfair and not done in good faith?
     • Whether the strata company contravened s 119 of the ST Act? Whether the council contravened s 137 of the ST Act?
       • What happened with the caretaker role?
       • Whether breakdown in relationship between Ms Duncan and Mr Lawrence?
       • Whether the strata company refused to clean Ms Duncan's main front bedroom and second bedroom windows?
       • Whether strata company is forcing Ms Duncan to sell her lot?
   • Whether the actions of the strata company are continuing?
     • Whether the strata company contravened s 104 and s 109 of the ST Act?
     • Whether there is an unelected council?
     • Whether death of Mr Lawrence brings into question the merit of the proceeding?
     • Whether the strata company failed to attend to Ms Duncan's garage doors?
   • Whether the intervention of an administrator is required?

1. Neither party challenged the jurisdiction of the Tribunal. However, before considering the issues (see above at [21]), I must first be satisfied that the Tribunal has jurisdiction to determine Ms Duncan's application. As stated at the outset, and is repeated here, Ms Duncan made her application to the Tribunal under s 197(4) of the ST Act seeking the resolution of a 'scheme dispute' or the proceeding.
2. Section 197(1) of the ST provides for the resolution of certain 'scheme disputes' including a dispute between 'scheme participants' about the performance of, or the failure to perform a function conferred or imposed on a person by the ST Act or the scheme by-laws (s 197(1)(a)(ii) of the ST Act). Here, the dispute concerns whether the strata company has contravened the ST Act such that it is appropriate for the Tribunal to intervene to appoint an administrator. This is the 'scheme dispute' that requires resolution under s 197(4) of the ST Act.
3. Ms Duncan and the strata company are both a 'scheme participant' as that term is defined in s 197(2) of the ST Act. This is because owners of a lot on the relevant strata plan (in this case Ms Duncan is the owner of a lot) and the strata company are expressly listed as a scheme participant in s 197(2) of the ST Act.
4. Finally, s 197(4) of the ST Act requires that the application to the Tribunal be made by a party to the dispute for the resolution of a scheme dispute. I am satisfied that Ms Duncan is a party to the dispute and made the application to the Tribunal.
5. For all of the above reasons, I am satisfied that the Tribunal has jurisdiction under s 197(4) of the ST Act to determine the dispute between Ms Duncan and the strata company.
6. I am also satisfied that the Tribunal may make any order and/or declaration that it considers appropriate to resolve the scheme dispute or make a decision to not make an order or declaration (s 199(1), s 200(1) and s 202 of the ST Act). I will return to the Tribunal's discretionary statutory power to make orders and declarations later in these reasons (see below at [47]).
7. I turn to work through and answer each of the questions raised by Ms Duncan (see above at [17]) which will ultimately lead to my decision on the primary issue (see above a [16]).

Whether the actions of the strata company are 'dysfunctional'?

1. Part 8 of the ST Act (s 91 to s 142) is headed 'Strata company'. It sets out the functions of the strata company, the objectives of the strata company, procedures to be followed by the strata company, the function and constitution of the council and various miscellaneous items.
2. Each of s 91, s 119 and s 137 of the ST Act on which Ms Duncan relies are found in Part 8 of the ST Act.
3. In particular, the 'functions' of a strata company (as set out in s 91 to s 118 of the ST Act) cover:

(g) various miscellaneous powers including enforcing compliance with by-laws, general powers and limitation on the exercise of powers.

1. Ms Duncan strongly asserts the strata company is 'dysfunctional' if she, as an owner, is specifically targeted.[13]
2. According to Ms Duncan the following are key traits of a 'dysfunctional' strata company:[14]
   • absence of trust/facilitation of conflict;
   • lack of commitment/inattention to detail;
   • avoidance of transparency and accountability;
   • poor communication; and
   • prejudicial decision-making.
3. It is Ms Duncan's submission that the ST Act:[15]

... does not differentiate between [the] statutory obligations. Nowhere in the [ST] Act does it say which statutory obligations are important enough to determine dysfunction and which statutory obligations are just general guidelines and don't really need to be adhered to [by] the strata company to be considered functional.

You can't be dysfunctional in some of these obligations, and not in others, and be considered functional. You can't be half dysfunctional.

(added emphasis)

1. The ST Act does not use the term 'dysfunctional'.
2. As Ms Duncan seeks the appointment of an administrator, it is useful to start by considering if any of the provisions dealing with the terms 'administrator' and 'administrator of the strata company' explain or refer to the term 'dysfunctional'.
3. The term 'administrator' is defined in s 3 of the ST Act as follows:

administrator of a strata company means a person appointed by the Tribunal as an administrator of the strata company under section 205[.]

1. Section 200(2)(q) of the ST Act provides that the Tribunal may make an order appointing an administrator of a strata company (being a person who has given written consent to the appointment) to perform some or all scheme function.
2. The definition of 'administrator' in s 3 of the ST Act expressly refers to s 205 of the ST Act. That section falls within Part 13 of the ST Act which deals with Tribunal proceedings. It provides:
   1. Administrator of strata company

(1) An order of the Tribunal appointing an administrator of a strata company may specify conditions of appointment of the administrator.

(2) If the Tribunal makes an order appointing an administrator of a strata company -

(a) no person other than the administrator may, while the order remains in force, perform a function that the administrator is authorised to perform under the order; and

(b) any act or thing done or suffered by the administrator in the performance of a function under the order has the same effect as it would have had if the order had not been made and it had been done or suffered by the person or body who, but for the order, would have been entitled or required to perform the function; and

(c) the Tribunal may, by further order, vary or revoke the appointment.

(3) An administrator of a strata company appointed by the Tribunal must, after performing a function under the order -

(a) make a written record specifying the function and the manner of its performance; and

1. Nothing in the provisions of the ST Act as set out in the preceding three paragraphs nor any other provision of the ST Act nor the Strata Titles (General) Regulations 2019 (WA), uses or references the term 'dysfunctional'.
2. Ordinarily the term 'dysfunctional' means not functioning properly or normally.[16]
3. If the strata company fails to perform one or more of the functions under the ST Act, that it is obliged to perform, that may lead to the conclusion that the strata company is not functioning properly or normally and, in that sense, it may be 'dysfunctional'. However, the dysfunctionality must be such that the strata company, in all of the circumstances, is unable to function or function at a satisfactory level which requires the intervention of the Tribunal to appoint an administrator in the place of the strata company.
4. In McKinnon v Adams [2003] VSC 116 (McKinnon), Bongiorno J in considering similar legislative requirements under the laws of Victoria held at [20]:

To justify the appointment of an administrator the body corporate [council] must be affected by some incapacity or must be acting so dysfunctionality as to render the provision of appropriate services to unit holders [owners] and/or the care of the common property either non-existent, or so beset by difficulties as to render the body corporate [council] unable to function at what the Court [Tribunal] considers to be a satisfactory level.

There may or may not be financial difficulties or even financial impropriety affecting the body corporate's [council's] capacity to function but there must be some deficiency in its operational capacity sufficient to justify the Court's [Tribunal's] intervention in the interest of some or all of the unit holders [owners].

(added emphasis)

1. Therefore, if the strata company is so dysfunctional such that it is unable to make decisions in the interests of the owners, an administrator may be appointed to bring the strata company back to a functioning level such that it is able to deal with the matters facing the strata company.
2. Following McKinnon, the Tribunal may make an order appointing an administrator where the evidence discloses that the council for the strata company:
   • is failing to operate properly in the interests of its owners; or
   • is being inefficiently or incompetently managed; or
   • requires the appointment of an administrator to protect the interests of an owners or the owners.
3. However, the appointment of an administrator is not limited to the three alternatives set out in the preceding paragraph. Rather, there may well be other circumstances, or a variety of reasons, where the council has not reached the level of dysfunctionality as described in McKinnon, but there may be good reason for the Tribunal to intervene and appoint an administrator.
4. The appointment of an administrator by the Tribunal is a discretionary power. The Tribunal does not take this task lightly. This is because the appointment of an administrator removes the democratic decision-making from all the owners, and hands this over to an independent administrator, who then makes decision for the strata company during the period of appointment, independently of all the owners, as set out in orders made by the Tribunal. The appointment of an administrator is a provision of last resort: Parker and The Owners of Timberside Villas - Strata Plan 27426 [2006] WASAT 254 (Parker) at [9]. Each case must therefore be considered in this context and determined on its own facts or particular circumstances.

Whether strata company contravened s 91 of the ST Act?

1. According to Ms Duncan the council failed to act when she made specific requests between 2019 and 2022 to:

(a) rectify a maintenance item for the roof panels;

(c) explain why paving had been pulled up and re-laid at significant cost;

(e) rectify maintenance item for the security of pedestrian and driveway gates;

(f) discuss concerns over decision-making in relation to painting of building;

(g) rectify maintenance item for building structural cracks;

1. Section 91 of the ST Act obligates the strata company to control and manage the common property for the benefit of all the owners. Further, the strata company must keep in good and serviceable repair, properly maintain and, if necessary, renew and replace the common property, including fittings, fixtures and lifts used in connection with the common property and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause.
2. In order for the strata company to undertake work for the control and management of the common property, the strata company is required to raise levies and determine from time to time the amount to be raised for the control and management of the common property. Section 100 of the ST Act governs the basis upon which a levy can be raised against owners to establish a fund for administrative expenses sufficient for the control and management of the common property, payment of insurance premiums and the discharge of any other obligations of the strata company.

Whether repairs and maintenance on common property done?

1. While Ms Duncan claims that the strata company's decision-making regarding maintenance and repair of her lot and management of the common property can only be described as 'dishonest, unreasonable, oppressive, unfair and not in good faith',[17] she accepts and concedes that most of the maintenance and repairs items that she requested between 2019 and 2022 (see above at [48]) have been[18]ompleted.18
2. Apart from the garage door complaint, which I will return to later in these reasons as it is still an outstanding issue, it is not necessary for me to consider each of Ms Duncan's complaints about maintenance and repairs. The reasons for this are as follows.
3. First, Ms Duncan's application does not articulate any substantial or ongoing issue that could or should be remedied by the appointment of an administrator. This is because, on Ms Duncan's evidence, the maintenance and repairs (apart from the garage door complaint, which I will return to later in these reasons) have been undertaken, albeit recently or not long after she lodged her application with the Tribunal.
4. Second, while Ms Duncan is concerned that the maintenance and repairs have only been attended to after she commenced the proceeding in the Tribunal and with no acknowledgement from the council that the repairs were required, without any meetings or discussions with her and without obtaining any quotes [19] there are no requirements in the ST Act that expressly state as to when the strata company must attend to repairs and maintenance.
5. Rather, as stated in Dworakowski and The Owners of 63 Temple Street Victoria Park Strata Plan 26070 [2020] WASAT 45 at [59] to [62] if there is evidence of an adequate process adopted by the strata company, the practical objective of which is to keep the common property in good and serviceable repair, properly maintained and where necessary renew or replace the common property, the strata company has discharged its duty imposed by s 91 of the ST Act even if, at any given time, the common property is in a deteriorated state. Whether the process adopted is adequate to meet the procedural objective and complied with in any case is a question of fact - the facts concerning the process adopted, the facts concerning the compliance with that process and the facts concerning the type or level of deterioration of or damage to the common property.
6. In this case the strata company has had a 10 Year Maintenance plan in place since 2020 and obtained an updated 10 Year Reserve Fund plan in 2023. Bluerock Projects Pty Ltd who prepared the 2020 plan described the general condition of the strata buildings as:[20]

The overall condition of the site is good for buildings of this age. Elements of previous maintenance were observed throughout the development. Only a few items of high to medium priority were observed.

The main impression was that the fabric of the building was aging according to its design lifespan and that only routine replacement of these elements would be required to maintain the standard of the building fabric.

1. Only one item was listed in the 10 Year maintenance plan category of 'high priority' - that of exposed cabling.[21] Ms Duncan did not raise the exposed cabling an issue requiring attention.
2. Cracking to masonry is a concern that Ms Duncan listed. It is reported in the category of 'medium priority'.[22] Ms Duncan accepts that this issue has been rectified.
3. Many of Ms Duncan's issues concerning repair and maintenance fall into the category of 'low priority'. Loose panels, painted surfaces, paint bubbling, debris in gutters and garage door replacement fall into this category.[23] Again, Ms Duncan concedes these items (except for the garage door) have all been rectified.
4. BIV Reports Pty Limited who prepared the 2023 plan provided the following comments:[24]

The property appears to be well maintained for its age. I have more common property lighting (some of which can be as simple as solar lights), the garbage bin area, replacement or treatment of any broken asbestos fencing, maintenance of the pool and equipment, stair nosings or non-slip finishes for additional safety, brickwork, timberwork and render repairs if required, handrails have been allowed as a safety barrier and also to prevent a fall hazard, upgrading the electrical boards with Residual Current Devices (kill switches) if needed, external painting renewal, maintenance and repairs to the roof, and other covered items of a capital (non-recurrent) nature, amongst other things.

1. I am satisfied that the strata company has in place appropriate 10 Year plans and have been attending to repair and maintenance issues.
2. Whether or not meetings and discussions are held by the council with the relevant owner(s) to deal with the issues of repair or maintenance is a matter for the council. In other words, the scope for intervention of the Tribunal is usually limited and only often available only as a last resort: Gawor and The Owners of Dawesville Caravan Park Old Coast Road Mandurah, Strata Plan No 14644 [2009] WASAT 170 at [69].
3. Ms Duncan attended annual general meetings (AGM) of the strata company and put matters before the meetings on several occasions. Most recent, window cleaning, gutter cleaning and replacement of garage doors were put to the annual general meeting of 19 July 2023 by Ms Duncan. The motions were voted on but failed.[25] While Ms Duncan may be disappointed by the motions failing, decision by majority is within contemplation of the ST Act. The prospect of decisions being made by a majority to deal with issues in a way that Ms Duncan does not agree with, do not justify the appointment of an administrator: Huning and Owners of Glengary 240 Mill Point Road, South Perth, Strata Plan 2684 [2010] WASAT 40 (Huning) at [53] and Carden and Vallelonga [2017] WASAT 150 (Carden) at [36].
4. By order of the Tribunal on 23 May 2023, following a mediation with the strata company, Ms Duncan requested and was given leave to withdraw a number of her complaint items for maintenance or repair as they were the subject of a work order issued by the strata company requiring the works to be completed by 1 August 2023. There is no utility in appointing an administrator to review the items that have been remedied as part of that work order.
5. Finally, it is unreasonable for Ms Duncan, having withdrawn a number of complaints for which a work order issued, for her to once more canvass those complaint items to support her position that she was wronged in past circumstances under a differently constituted council, as justification for the appointment of an administrator to carry out functions of the strata company.

Whether strata company contravened s 119 of the St Act? Whether council contravened s 137 of the ST Act?

1. Ms Duncan asserts that s 119 and s 137 of the ST Act were contravened.
2. Section 119 of the ST Act requires the strata company, in performing its functions, to have the objective of implementing processes and achieving outcomes that are not, having regard to the use and enjoyment of lots and common property either unfairly prejudicial to or discriminatory against a person or oppressive or unreasonable. In achieving this objective, the strata company must, among other things, consider the merits of any proposal put to it and the options that are reasonably available in the particular circumstances.
3. Sections 137 of the ST Act sets out the general duties of members of council including to act honestly, with loyalty and in good faith at all times.
4. Ms Duncan asserts that the council:[26]

(a) made unreasonable and onerous requirements in requiring her to in relation to investigating and proving and repairs of her property when other owners are not put to the same requirements;

(b) repeatedly ignored, rejected or obstructed her requests for council to investigate and repair damage to her lot and the common property;

(c) ignored, fabricated or manipulated the advice and recommendations from contractors as to the cause of the damage to her lot and the common property;

(d) knowingly made false statements, formal opinions and or accusations in relation to the motivation behind requests for investigation and repair of damage to her lot and the common property;

(e) neglected to hold meetings and formally document their assessment or investigations of their decisions; and

(f) failed to communicate, mediate or engage meaningfully to try to resolve the dispute with her.

1. It is Ms Duncan's contention that the above alleged contraventions of s 119 and s 137 of the ST Act arose in relation to her request to repair her garage, lounge room wall and ceiling, bathroom ceiling, and study and bedroom windows. In addition, Ms Duncan says the above contraventions relate to her dealing with the council over:[27]

(a) requests for meetings and mediation to deal with the repair issues;

(d) distribution of materials defaming her to other owners, contractors and strata mangers; and

(e) collusion to orchestrate her removal from and to prevent her future nomination and election to council.

1. Ms Duncan believes that members of the council have been unable or unwilling to separate their personal views in relation to her from their obligations to her under the ST Act. In particular, Ms Duncan asserts that there has been a systemic, targeted and sustained approach by the strata company from 2019 to 2022 to actively destroy her 'credibility', 'integrity' and 'reputation' in the strata complex and in doing so, she was pursued with the objective or her selling and moving out of the strata complex.[28]
2. The strata company takes a very different view.
3. I accept the submission of counsel for the strata company that, like in the case of Huning, the Tribunal should focus on recent alleged issues as that goes to whether there is any utility in appointing an administrator to bring the strata company back to a functioning level such that it is able to deal with the matters facing the strata company.
4. In my view, this is a sensible approach, because not only is the appointment of an administrator an extreme measure of last resort to overcome the inability of a strata company to function, but there must also be consideration of what an administrator could achieve in the current context of the strata company's operation.
5. Counsel for the strata company submits that nothing before the Tribunal, absent the appointment of an administrator, suggests that the current council will disregard the requirements of s 119 of the ST Act.
6. I accept counsel for the strata company submission that s 119 of the ST Act does not create a new function for the strata company but rather dictates how its existing functions are to be exercised.
7. Section 119 of the ST Act provides an avenue for an applicant to seek relief (in instances as they arise) where the applicant considers the strata company is performing its functions, or the majority exercising their voting powers, in conflict with the object. In other words, s 119 of the ST Act reduces the necessity for external control of the strata company by an administrator.
8. I accept counsel for the strata company's interpretation of s 137 of the ST Act that a breach of the duties - which are placed on individual members of the council rather than on the strata company - may deprive an individual of the protection from liability conveyed by s 141 of the ST Act and thereby exposing the individual to a civil remedy.
9. The existence of these duties under s 137 of the ST Act does not alter the assessment that the appointment of an administrator is an extreme measure, of last resort, to overcome the operational incapacity of the strata company.
10. A breach of s 137 of ST Act could impair a strata company's ability to function but that could be remedied by the Tribunal's exercise of power under s 200(2)(h) of the ST Act by making an order to remove the individual from office rather than the appointment of an administrator.
11. I will start with the caretaker role as that explains the relationship breakdown between Ms Duncan and Mr Lawrence, who was a member of the council.

1. By way of background, I note that prior to Ms Duncan moving into the strata complex in early 2019, she and Mr Lawrence (who owned the lot next door to Ms Duncan) had served on the council for about two decades. Ms Duncan stated: [29]

Mr Lawrence and I were more than happy to live and work together. There were no issue[s].

1. Further, Ms Duncan described the relationship at that time as 'cordial.'[30]
2. However, in about February 2029, when Ms Duncan rejected Mr Lawrence putting himself forward to take on a formal, paid caretaking role for about $5,000 per annum for the strata company, which the majority of the council agreed to, that things started to deteriorate, or in Ms Duncan's words, 'it became very personal'.[31] This was so, even though Mr Lawrence did not take up a formal, paid caretaker role. He continued to the carry out the role as caretaker informally and without remuneration.[32]
3. Ms Duncan says her position concerning the caretaker role was 'reasonable, sound and articulated in a robust and logical manner.'[33] It also followed the decision made at the earlier 2018 AGM, that a caretaker was not required.[34]
4. I do not accept Ms Duncan's closing submission that counsel for the strata company in his line of questioning suggested that she had subsequently disrespected Mr Lawrence, thereby making herself responsible for and condoning the subsequent actions of the strata company in their dealings with her.[35] Further, I do not accept Ms Duncan's submission that counsel for the strata company in his line of questioning portrayed her as the person to blame for the matter.
5. I find Ms Duncan's evidence as to why she rejected Mr Lawrence taking on the caretaking role unclear and contradictory. This is because she stated that there was 'simply not enough work to justify' a caretaker yet her position is that that she 'absolutely 100% wanted a caretaker, someone to clean the building. I wanted someone to sweep the sweep the stairs' and that she 'wanted that job outsourced' so that she did not have to approach a resident if the work was not done but also wanted all occupiers to share the caretaking tasks.[36]
6. Following Mr Lawrence's death in August 2024, there is no evidence before the Tribunal as to whether the caretaker role is still of concern.
7. In summary, besides the lack of minutes of previous council meetings to which I will return to later in these reasons, I find the actions of council concerning the caretaker role do not support Ms Duncan's assertion that the strata company is dysfunctional.

Whether there was a breakdown in relationship between Ms Duncan and Mr Lawrence?

1. From Ms Duncan's perspective, it is Mr Lawrence's alleged conduct towards her that is at the core of her complaints and the reason for her application to the Tribunal. Ms Duncan's partner, Mr Davis, put it this way:[37]

If [Mr Lawrence] had [entirely constrained his activity and communications to a professional level], we wouldn't have been here today, make no mistake. So his behaviour towards Ms Duncan, towards her requests and his dealings with her and the strata company as a result, is the reason we are here.

1. There is no doubt that the relationship between Ms Duncan and Mr Lawrence quickly deteriorated from early 2019.
2. Mr Lawrence emailed Ms Duncan on more than one occasion accusing her of 'undermining' and 'bullying' him and wrote of 'being on the receiving end of [her] constant anger, negativity and hatred which is also permeating through the complex.'[38]
3. The deterioration in relationship between Ms Duncan and Mr Lawrence was known to the other members of the strata company.
4. Ms Dianne Myers, a former member of the council, in giving evidence stated that she told Mr Lawrence that she:[39]

... didn't believe that he should put all his personal stuff and opinion in an email, that he needed to keep it professional and not just let it all out there. Whether he felt like that or not - he needed to talk to someone if it felt like that, but he needed to remain professional, and that this was all a bit not professional.

1. Every time she saw Ms Duncan, Ms Myers said:[40]

... she [Ms Duncan] would be telling me what a bad human Max was, until ... one day, she complained that Max would never do anything for her, and I said, 'I think it's the way you two get along. If you treat him with respect, he treats you with respect.' She said, 'He will do it for you.' I said, No, he will do it for anybody who treats him with respect.' She said, 'You're weak' and we haven't spoken since.

1. It was also of concern to Ms Myers that Mr Lawerence was 'just waiting around the corner for the next explosion or drama' to occur with Ms Duncan and that Mr Lawrence was 'frightened' of Ms Duncan.[41]
2. Ms Myers' concern is reflected in Mr Lawrence's testimony in the Magistrates Court on 23 February 2022[42] in which he stated that he:

... organised my life around [Ms Duncan and Mr Davis]. I would watch them when [Mr Davis] would come and when he would go and do everything to avoid running into him on the property. So he would leave in the morning, every morning. You could set your watch by it. They would leave, you know, at 7.15 to 7.20 and that's when I would go out or I would try and leave in the morning so didn't run into them.

1. Mr Davis' challenged the above testimony of Mr Lawrence asserting it was 'a lie.'[43] However, Ms Duncan gave evidence that she agreed that Mr Lawrence changed his routine to avoid her and Mr Davis. Further, Ms Duncan testified that Mr Lawrence went to 'extraordinary lengths to avoid us [Ms Duncan and Mr Davis]'.[44]
2. It is common ground, and I find there was much internal conflict or impasses between Ms Duncan and Mr Lawrence that they could not resolve. It is also clear from Mr Davis' evidence (see above at [90]), that had Mr Lawrence constrained his activity and communications that they (Ms Duncan and Mr Davis) would not be at the Tribunal. However, such internal conflicts or impasses between and owner and a member of council, without more, does not justify the appointment of an administrator: Fraser and The Owners of Morgan Mews, Strata Plan 45385 [2011] WASAT 102 at [48].

Whether the strata company refused to clean Ms Duncan's main front bedroom and second bedroom windows?

1. Ms Duncan explained that her lot is on the third level with an enclosed balcony and therefore, unlike other lots, she is unable to clean her own windows. Prior to 2019, the window cleaning was budgeted for and done annually by the strata company.[45]
2. Following the issue of a work order on 30 May 2019 by the strata manager for the cleaning of the windows, Ms Duncan emailed the strata manager on 1 July 2019 to state, among other things, that while the window cleaners had 'made an attempt to clean the Main Window', they had failed to clean the main front bedroom and the second bedroom windows.[46]
3. In reply to the strata manager, Mr Lawrence by email stated that he had spoken with Dale (of undisclosed surname) from Brillwind, the window cleaner, and that Ms Duncan's complaint was a 'total untruth' as he had seen him 'up the ladder cleaning the main bedroom window' when he went out. Further, Mr Lawrence wrote that Dale told him that the second bedroom window was covered in cobwebs and that Ms Duncan will see that the cobwebs are no longer there.[47] Mr Lawrence concluded his email by stating that Ms Duncan is the first person to ever complain about Dale's work and that he won't be returning to redo the windows.[48]
4. Following this, Ms Duncan sent to Mr Lawrence a text with a photo showing her windows with cobwebs. In reply, Mr Lawrence said that he would 'forward the pics onto the contractor. It's a shame you hadn't sent these with your original complaint. I just spoke with the contractor and he'll be back next week and I apologise for doubting you.'[49] Mr Lawrence followed up his text with an email to the strata manager and to council repeating the text, but omitting the apology.
5. Ms Duncan responded on 11 July 2019 stating that she had 'spoken to Dale and apparently he was only asked to do the Front of the Building of units 5 & 8' and that 'You [Mr Lawrence] knew this was the case and still astoundingly decided to forward me your disgraceful barrage of untrue accusations. When you had the chance to apologise you did so privately by Text message only to further blame me in the same Public Forum.'
6. In her closing submissions, Ms Duncan again challenges the line of questioning taken by counsel for the strata company to suggest that she had disrespected Mr Lawrence and that she is responsible for and therefore deserved the actions of the strata company dealings towards her.[50]
7. I find Ms Duncan's concerns about the line of questioning by counsel for the strata company is without merit. Rather, in my view, Ms Duncan's oral evidence was purposely evasive in relation to two matters.
8. First, Ms Duncan, despite been invited to, failed to confirm that she had spoken with Dale and that he had been told to only clean 'the front of the building of units 5 & 8'.
9. Second, and of more concern, is that when Ms Duncan was asked to explain and identify the 'disgraceful barrage of untrue accusations' that she asserts Mr Lawrence made against her, Ms Duncan was not able to identify any. In the end, she accepted that her use of the word 'disgraceful' was a 'bit excessive.'[51]

Whether strata company is forcing Ms Duncan to sell her lot?

1. Ms Duncan is of the belief that that the actions of the strata company have been: [52]

... well orchestrated and designed to serve a single purpose, to frustrate, intimidate, gain advantage and power over Mrs Duncan with a stated desire to get her to sell up and leave the strata.

1. The strata company accepts that the following two instances show that Mr Lawrence's belief was that Ms Duncan intended to sell her lot:

(a) in proceedings before the Magistrates Court where Mr Lawrence testified:[53]

The two of them have brought this apartment and they're waiting to sell the apartment they're in. It's getting painted this - in the next couple of weeks. So this has been going on for a couple of years to get the painting done and I believe they're going to sell it as soon as it has been painted.

(b) in an email to Ms Duncan dated 5 August 2020, Mr Lawrence stated in part:[54]

It didn't escape my attention the timing of the pressure being applied to overrule the democratic COO [council] vote coinciding within 12 months you would have resided here, and thus be exempt from capital gains on the sale of your unit.

1. However, when invited to support her assertion, that the actions of the strata company are 'well orchestrated ... to get her to sell up and leave the strata', Ms Duncan did not do so.[55]
2. In my view, the strata company's view of Ms Duncan is correct. That is, I find Ms Duncan's exchanges, be it with Mr Lawrence or with other members of the council demonstrate her combative approach and readiness to take offence at real or imaginary slight and a willingness to support the position as she sees it,[56] whether or not it reflects the reality of the situation.

Whether the actions of the strata company are continuing?

1. Ms Duncan contends that even following the death of Mr Lawrence in August 2024 and following the resignation of Ms Myers from the council, the actions of the strata company are still continuing against her and she therefore asserts the strata company is still dysfunctional.

Whether strata company contravened s 104 and s 109 of the ST Act?

1. Ms Duncan says that she has made numerous requests to the council for all correspondence from the strata company in relation to this proceeding which have been repeatedly denied, provided in part or told that the documentation was sent.[57]
2. Ms Duncan accepts that eventually she received the documentation which contained over 1,250 emails and documents in 59 subfolders.
3. However, it is Ms Duncan's contention that the council deliberately failed to make available to her the documentation and that the council with the strata manager made arbitrary decisions and changed policy relating to the retention of, and distribution of strata company correspondence. According to Ms Duncan, these actions could only have been undertaken with the intent of hiding the council's culpability in relation to the matters being dealt with in this proceeding and hinder her and the Tribunal's endeavours to deal with the matter fairly.
4. The strata company made no substantive submissions on this issue, other than to reiterate that it cannot be the case that there is a deficiency in the operational capacity of the strata company to warrant the appointment of an administrator.
5. There are a number of alternative avenues available to Ms Duncan, as an owner, under the ST Act to pursue her concern. For example, in relation to alleged breach of s 109 of the ST Act, it was open to her to make an application under that provision, or alternatively under s 197(4) of the ST Act and seek an order against the strata company under s 200(2)(m) of the ST Act. Ms Duncan has not availed herself of these alternative avenues, which are not provisions of last resort.
6. The strata company has responsibilities for record keeping under the ST Act which includes allowing an owner to inspect the strata records provided that all the requirements are satisfied. Mr Zeeb testified that previously there was a lack of minutes of council meetings, but this is no longer the case. I accept Mr Zeeb's evidence.
7. In conclusion, as Ms Duncan conceded that she eventually received all the documents, therefore there is no utility to appoint an administrator in regards to access to the strata records.

1. By way of background, Ms Duncan previously nominated to be on council at the 2019 and 2020 AGMs and was successful.[58] She nominated again to be on council at the 2021 annual general meeting but was unsuccessful.[59] While she attended the 2022 AGM she did not nominate to be a member of the council. Ms Duncan is not challenging the validity of the council in those years.
2. However, Ms Duncan challenges what happened with the membership of the council in 2024.
3. This is what occurred according to Ms Duncan. In 2024 when a member of the council resigned, Mr Lawrence was re-elected because as stated in an email:

... it was the only way to make sure [Mrs] Duncan isn't allowed back on the [council].

1. Further, on the evening before a directions hearing in the Tribunal on this matter, according to Ms Duncan, the council strategically agreed for Mr Lawrence to resign and to have another owner appointed: [60]

1. And that it had to be done that night:[61]

1. Finally, following the death of Mr Lawrence, no nominations were called, rather the council persuaded an owner who had never attended an AGM to become a member of the council.[62]
2. Ms Duncan described the above actions as a 'strategy' to fill the council with members without an election shows that the council is continuing to act in a dysfunctional manner as neither of the two new members attended an AGM, communicated with the strata manager or responded with a proxy.[63]
3. Mr Zeeb, the current chairperson of the council testified that by 2022 there was little interest in owners attending the annual general meeting and that: [64]

...[b]y then we did not want Ms Duncan on council. She was extremely disruptive, generated excessively long email chains, created a hostile work environment with much unwarranted drama.

1. A copy of the scheme by-laws is not before the Tribunal in this matter.
2. The 'standard by-laws' provide for in Sch 1 (Governance by-laws) to the ST Act at by-law 4(10) that the remaining members of the council may appoint a person eligible for election to the council to fill a vacancy in the office of a member of the council, such as when a member dies or resigns, other than a vacancy arising under sub-bylaw (9)(c) or (d), and any person so appointed holds office, subject to this by-law, for the balance of the predecessor's term of office. Filling of vacancies in the office of chairperson, secretary and treasurer are dealt with in Sch 1 by-law 4(6)(3A).
3. As previously stated, and is repeated here, there are several avenues available to an owner, in this case, Ms Duncan, under the ST Act to pursue her concerns, for example under s 47(3) to challenge the alleged breach of a scheme by-law in regard to vacancies arising on the council due to the resignation or death of a member of the council. In the alternative, another avenue available to Ms Duncan is to challenge the appointment of a member to the council under s 197(4) of the ST Act to resolve a scheme dispute by seeking an order under s 200(2)(h) of the ST Act to have a member removed from the council.
4. Ms Duncan's concern for the appointment of members to council arising from a vacancy due to the death or resignation of a member is misconceived.

Whether death of Mr Lawrence brings into question the merit of the proceeding?

1. Ms Duncan says the inference from the statement made by the strata company that the death of Mr Lawrence brings into question the merit of proceeding with the application before the Tribunal, is that either Mr Lawrence was the sole decision-maker which would render the council dysfunctional, or alternatively, if the other members of council were complicit in their decisions relating to Mr Lawrence, then again, the strata company is dysfunctional.
2. I do not accept Ms Duncan's position for the following reasons.
3. First, there is no evidence before the Tribunal to support the position that Mr Lawrence was the sole decision-maker or that the other council members simply deferred to Mr Lawrence. Besides a lack of minute taking for council meetings in previous years, which the strata company concedes, issues arising for the council while Mr Lawrence was a member of the council were dealt with by circular email, in person, text or by telephone discussions.
4. Second, as Mr Lawrence died in August 2024, the deteriorated relationship between Ms Duncan and Mr Lawrence by itself, without more, does not justify the appointment of an administrator. This is because the internal conflicts or impasses by themself do not justify the appointment of an administrator.
5. Finally, there is a new council (without Mr Lawrence and without Ms Myers), and there is no evidence before the Tribunal, including for the garage door complaint, which is set out in the next few paragraphs, which suggests the council is not operating or functioning at a satisfactory level.

Whether strata company failed to attend to Ms Duncan's garage door?

1. Ms Duncan explained that recently in January of 2025, her garage door, which is one of the many items which formed the basis of her application to the Tribunal, finally failed for the last time.
2. Ms Duncan asserts that whilst the strata company acknowledges her garage door is part of the common property and that needs repair, they have refused to replace the door and say the door can be operated manually for another three years.[65] Such action by the strata company, asserts Ms Duncan, is a strata company not acting in good faith.
3. Mr Zeeb has been a member of the council since at least 2019. He is currently the chairman of the council. Mr Zeeb explained that in late 2020 there was a difficulty with opening and closing the garage door due to a worn-out kicker bolt, which was replaced at that time.[66]
4. Further, Mr Zeeb testified that he received and responded to an email from Ms Duncan concerning her garage door. He explained it this way:[67]

[T]he garage doors were flagged in the first building maintenance report as needing a replacement in, I believe, off the top of my head, '27, 28 financial year. So there is a building maintenance item, and we have budget and everything in place. We fully intend to replace the doors at that time. Now, [Ms Duncan] submitted a request effectively that her garage door has completely failed. Now, we are at a stage that we do not have budget available, so it does not make economic sense to replace a single garage door. We - this is acknowledged by, I think both parties. We do not also - we also do not have budget to replace a collective of doors right now. So what I have said in my response to Ms Duncan was, we acknowledge that there is an issue with her door. We do not have budget to resolve it right now. I'm looking to adjust the budget next year, such that we can prioritise repairing her door. I'm still exploring the options for how we can budget. This is three years ahead of schedule for - for the context of the room as well. Our current budgets typically come in at around 40,000 per year in actual spend, in terms of what was actually spent. Replacing the garage doors will cost approximately $30,000. So that is effectively an entire year's worth of budget. As such, we do not have budget for it currently.

...

And I - my current plan is perhaps we split that over a couple of financial years, so rather than do all of the doors in one hit, which we can't afford because it's too early, maybe we do, say, four doors now, five doors the following year, see if the contractors will agree to that to spread it time wise a little bit, but give us the bulk rate discount. And we would prioritise Ms Duncan's door first. Obviously, she has reported the most issues. No other owner has reported issues with their doors currently. So we prioritise hers. I go back to the rest of the owners as well, ask if anyone else having issues with their door. We priorities those doors first, and we come back - we still want to do the entire complex, so they all look the same, dealt with the same, we get the bulk rate discount, but we don't have, simply, budget to do it right now.

1. While Ms Duncan challenges the oral evidence of Mr Zeeb which she says directly contradicts the position put to her by the strata company, she did not put forward any other evidence to support her position.
2. The orders made by the Tribunal on 23 May 2023, record that Ms Duncan withdrew the garage doors issue at mediation on the basis of: [68]

... the acknowledgement by the respondent [strata company] that the maintenance and/or replacement of the garage doors require the attention of a general meeting.

1. It is unreasonable for Ms Duncan to now seek to canvass the issue once more in order to illustrate that she has been wronged, as justification for the appointment of an administrator for a period of three months.
2. Finally, and in any event, it is clear from Mr Zeeb's evidence, which I accept, that he recognises and acknowledges Ms Duncan's concern about her garage door. Mr Zeeb has had regard to the limited financial resources available to the strata company as well as the 10 Year plan as to when the garage doors are highlighted to be replaced while considering all the owners as a whole and seeks to find an optimal solution. Nothing in Mr Zeeb's explanation suggests that the strata company is dysfunctional.

Whether the intervention of an administrator is required?

1. Ms Duncan contends that the actions of the strata company over the past six years or so have had serious repercussions for her, for her lot and for the strata company. In summary, Ms Duncan says the actions of the strata company are:
   • oppressive;
   • unreasonable;
   • unfairly prejudicial and discriminatory;
   • dishonest;
   • disloyal;
   • not done in good faith;
   • done to gain and maintain an unfair advantage over her; and
   • to remove her from the council and to make sure she could never be elected again to the council.
2. Ms Duncan states that she understands the financial implications of appointing an administrator, which she will have to contribute towards, as an owner, but contends that if the Tribunal fails to appoint an administrator for a period of three months to 'reset the statutory obligations and put an end to this mater', that the actions of the strata company during the past six years or so will, in effect, be condoned.
3. Further, Ms Duncan suggests that if an administrator is not appointed, the strata company will be empowered to continue to act in the manner they have towards her and in their management of the strata company, which has not changed since the making of her application to the Tribunal over two years ago, and which will lead to more actions against the strata company being made to the Tribunal.
4. Ms Duncan estimates the cost of an administrator to be about $12,500. While Ms Duncan accepts that this will cause financial burden to all owners, it is Ms Duncan's understanding that the strata company have already incurred more than $12,000 in legal fees in the past year in defending this matter in the Tribunal.
5. Despite the legal fees incurred, Ms Duncan asserts that the council have not communicated the context of the cost of this proceeding on the budget, levies and insurance to all the owners. Further, Ms Duncan is concerned that the strata company has not asked owners to consider the implication or to vote on how they should proceed at any stage during this proceeding before the Tribunal. It is therefore Ms Duncan concern that the strata company though its council has little concern about the distribution of the financial resources to defend this matter in the Tribunal.[69]
6. While Ms Duncan challenges Mr Zeeb and Ms Myers over the right to decide whether to capitulate to her application, counsel for the strata company explained that neither Mr Zeeb nor Ms Myers made any decision. The reason for this is that the strata company's insurer assumed funding and conduct of the strata company's defence to Ms Duncan's application, including the right to settle proceedings.
7. Nothing in this case turns on the correspondence between the parties where the strata company indicated a possible consent to the appointment of an administrator for three months provided it was limited to the holding of an annual general meeting and to oversee the election of council, to save costs.
8. It is of course in the best interest of parties to use their best endeavours to compromise and resolve their dispute so as to avoid unnecessary recourse to the Tribunal. Unfortunately, that was not possible in this case.
9. In conclusion, my findings in relation to the first two questions (see above at [29] to [145]) do not lead me to the conclusion that an administrator is required. Rather, bearing in mind that the appointment of an administrator is a measure of last resort: Parker at [9] and following McKinnon I do not find deficiency in the strata company's operational capacity sufficient to justify the Tribunal's intervention in the interests of Ms Duncan or all the owners. The reasons are as follows.
10. First, while not downplaying the acrimony that endured between Ms Duncan and Mr Lawrence between 2019 and 2022, the strata company had and continues to have in place:

(a) a 10 Year maintenance plan from 2020 and the 10 Year Reserve Fund Plan from 2023 in which it is reported that the strata buildings built in 1989 is in good condition for its age;[70]

(c) job register since at least 31 December 2018 showing maintenance work is regularly undertaken including works in progress;[72]

(d) annual general meetings are called, held annually with minutes showing matters raised by owners and voted on with the outcomes recorded. A council is established, and its composition is voted on at the annual general meeting;[73]

(e) budgets are submitted and approved annually, and financial accounts are maintained;[74]

(f) debts are paid and levies are raised and collected;[75]

(g) insurance is sourced and paid annually, and the strata building is currently valued to avoid under insurance;[76] and

(h) an established strata management company is engaged as the strata manager.[77]

1. While previous council decisions were made informally either by telephone call, in person, by circular emails or by text message, the council currently has more formal meetings for which minutes are kept.[78] Ms Duncan accepted there is a 'slight change' in the way council is run.[79]
2. Second, Ms Duncan's portrayal of the other members of council deceitfully conspiring to get rid of her was not made out (see above at [109] to [112]).
3. Third, Ms Duncan did not put forward any evidence to support a finding that the historical animosity between herself and Mr Lawrence impacts on the ability of the current council to perform its functions under the ST Act.
4. Fourth, this is not a strata company like in Hockey and Owners of Mount Bakewell Resort Strata Plan 18228 [2013] WASAT 64 where that strata company was unable to pass budgets, levies, or contributions or make decisions in circumstances where one owner held two-thirds of the unit entitlement. Rather, here the strata company has held annual general meetings, passed budgets and maintained financial statements (see above at (155]).
5. Fifth, this is not a case like 43 Kinsella Street where the management of the strata scheme came to a standstill as a result of internal disputes and conflict between the owners. In that case, it was clear the strata company was not able to discharge any of its functions under the ST Act. Further, in that case, all of the owners agreed that an administrator was needed to be appointed (but they disagreed as to who should be appointed). Here, the strata company has not come to a standstill.
6. Sixth, this is not a case like Adder Holdings Pty Ltd and The Owners of Harbour Pines Strata Plan 23297 [2022] WASAT 120 where it was necessary to appoint an administrator with suitable financial experience to: (a) disaggregate the operating levy, strata levy and reserve fund levy from the amounts received from the council and the strata manager; and (b) convene and preside at a general meeting of the strata company to elect members to the council (as the Tribunal found the council had not been validly appointed). Besides Ms Duncan's complaints about how vacancies on the council were filled, in particular, the appointment of Mr Lawrence, she has not challenged the validity of the council, or the resolutions passed at general meetings.
7. Seventh, this is a case more in line with Carden where non-contentious issues such as paying bills, paying for repairs and paying the insurance were done as well as holding meeting including the mandatory annual general meeting had been called and attended. In that case there was no election of members to council, the relationship between owners was acrimonious and owners claimed they were not able to access the record or accounts of the strata company, and the maintenance of the common property had become contentious. In dismissing the application in that case, the Tribunal stated at [37]:

This application must be used only as an application of 'last resort' as per Parker. There are a number of other avenues available to the applicant as owner under the ST Act to pursue what appears to be her principal concern, that is, the enforcement of the by-laws and to ensure the strata company undertakes its duties diligently.

1. Eighth, much of this case concerns historical matters, in which Mr Lawrence was involved. Further, a large number of the matters concern repairs and maintenance issues between 2019 and 2022 which Ms Duncan accepts most (apart from the garage door) have now been resolved. The Tribunal in Huning at [17] observed that much of the submissions and material was out of date as it related to the activities of the former strata manager and the former council and as a result focused on the management of strata company over the most recent period of about four months. As the evidence of Mr Davis (see above at [90]) is that the application is before the Tribunal because of Mr Lawrence, as he is deceased and has not been on council since August 2024 the focus of the Tribunal, following Huning, in on the Ms Duncan's complaints from August 2024, none of which warrant the appointment of an administrator.
2. Ninth, the significance and complexity of any outstanding tasks is a relevant in terms of whether Ms Duncan, who seeks the appointment of an administrator, has demonstrated that the evidence discloses that the council of the strata company is failing to operate properly in the interests of the owners, is being inefficiently or incompetently managed or the appointment is necessary to protect the interests of the owners: McKinnon at [20] to [21]. The one ongoing and outstanding issue raised by Ms Duncan is that of the garage door. It is being dealt with properly by the council (see above at [138] to [145]).
3. There is no merit in appointing an administrator to undertake a review of, or an inquiry into past disagreements, alleged statements made, or decisions arrived at by council, for the purpose of exonerating Ms Duncan (or anyone else) or to censor those that she has considered have wronged her. This is particularly the case, where a major breakdown in relationship occurred between Ms Duncan and Mr Lawrence. The breakdown in relationship was protracted from 2019 until Mr Lawrence's death. As previously stated, and repeated here, internal conflicts or impasses are not, without more, grounds for the appointment of an administrator.
4. Finally, Ms Duncan does not articulate any other substantial or ongoing issues from August 2024 that could or should be remedied by the appointment of an administrator.

Conclusion - Whether the council acting for the strata company contravened the ST Act, in particular s 91, s 119 and s 137, such that it is appropriate for the Tribunal to appoint an administrator?

1. Ms Duncan states that she made her application to the Tribunal as a last resort, because in her view 'the members of the council are unable to separate their personal feelings towards her from their statutory obligations under the ST Act to deal with her fairly and in good faith, thereby rendering the strata company dysfunctional.' As noted earlier in these reasons (see above at [90]), but repeated here, Ms Duncan's partner, Mr Davis put it this way:

If [Mr Lawrence] had [entirely constrained his activity and communications to a professional level], we wouldn't have been here today, make no mistake. So his behaviour towards Ms Duncan, towards her requests and his dealings with her and the strata company as a result, is the reason we are here.

1. Ms Duncan is concerned that without the appointment of an administrator, the actions of the strata company will be condoned and will empower it to continue doing what it has done for the past six years and that will leave her with having to file more applications with the Tribunal.[80]
2. However, the evidence before the Tribunal does not demonstrate, on balance, that the strata company is operating so dysfunctional, or is so beset by difficulties impacting on its capacity to function, such that it would warrant the intervention of the Tribunal and the appointment of an administrator. Rather, the council lead by Mr Zeeb as the chairperson appears to be genuinely attempting to move forward in a reasoned and measured manner. In regard to the outstanding issue concerning Ms Duncan's garage door, the council has not refused or failed to deal with but rather, per Mr Zeeb's testimony, it is dealing with it.
3. The consequence is that as the position has not been reached in this case where the strata company is so beset by difficulties as to render it unable to function at a satisfactory level, it is not necessary for the Tribunal to intervene to appoint an administrator in place of the strata company. Consequently, Ms Duncan's application is unsuccessful and it is dismissed.
4. It is opportune to conclude by observing that where issues, or perceived issues, arise between owners (or between the strata company and an owners), that common courtesy and basic goodwill should be the starting point. In this regard, I note and adopt the statement of Justice Kenneth Martin in Staley v Pivot Group Pty Ltd [No 6] [2010] WASC 228 at [165], a case involving an easement dispute between neighbours that:

... Courts [Tribunals] cannot force neighbours [owners or the strata company and an owner] to act reasonably or sensibly towards each other. A codified conduct regime by the declaration of a court [tribunal] is an inadequate substitute for common courtesy and basic goodwill being recognised as the expected standard of behaviour between ... neighbours [owners or the strata company and an owner].

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

[3] Initially, Ms Duncan sought orders under s 200(2)(h) of the ST Act against Mr Maxwell Elliot Lawrence (now deceased), Mr Benjamin Zeeb and Ms Dianne Myers as well as orders under s 200(2)((j) and s 200(2)(q) of the ST Act for the termination of the strata manager's contract and the appointment of an administrator of the strata company to perform (unspecified) scheme functions.

[6] Council is defined in s 3 of the ST Act to mean the governing body of the strata company.

[18] HB at page 1,200 and ts 16, 30 January 2025.

[33] Ms Duncan's closing written submissions filed on 8 March 2025 at page 8.

[35] Ms Duncan's closing submissions filed on 8 March 2025 at page 8.

[42] HB at page 512. Mr Lawrence made an application for a restraining order against Mr Davis.

[49] HB at page 259 and ts 172, 31 January 2025.

[50] Ms Duncan's closing submissions filed on 8 March 2025 at page 9.

[56] The strata company's closing submissions at page 5.

[60] ts 17, 30 January 2025 and HB at pages 1,195 and 1,196.

[76] HB at pages 1535 to 1583 and 1717.

[78] ts 28, ts 36 to ts 38, ts 47, ts 48, ts 50, ts 63 to ts 64 and ts 110, 30 January 2025.