Maguire v Owners of Roslyn Strata Plan 35960 [2014] WASC 28

1 On 19 February 2015, Ms Gawor (applicant), the proprietor of Lot 3 on Strata Plan 14644, made an application in the Tribunal against Ms Fair, which was later changed to record the correct respondent being the Owners of Dawesville Caravan Park Strata Plan 14644 (respondent). The application was made pursuant to s 90 of the Strata Titles Act 1985 (WA) (ST Act). The applicant sought a 'hard copy' of a deed said to be between the owners of Lot 96 (now Lot 97) on Strata Plan 14644 and the 'Strata Committee' member Mr Temov and 'his Caravan Park manager'.

2 At the third directions hearing in this matter on 15 April 2015, the Deputy President of the Tribunal engaged the parties in facilitative dispute resolution so as to accommodate the applicant's true need for information and balance that against the respondent's obligations under the ST Act. The Deputy President presiding at the directions hearing counselled that the real dispute between the applicant and the respondent appeared to concern an issue that was unlikely to be resolved by reason of access to or production of a copy of the deed.

3 The Deputy President listed the question of whether or not the applicant should have a copy of the documents sought and, if so, on what terms for a short hearing (T:27; 15.04 15). All other ancillary complaints that the applicant raised against the respondent during the directions hearings concerning:

• individual caravan site letterboxes situate on Lot 97 (which letterboxes are not visible from outside of the lot);
• confusion of visitors to the strata parcel between a caravan site number on Lot 97 and the applicant's lot number; and
• the construction of a fence allegedly on common property by the proprietor or occupier of Lot 97were not properly before this Tribunal.

did not comprise part of the proceeding and were not included to be subject of the hearing listed by the Deputy President.

4 The Deputy President resolved in the end that the only matter that could be, and would be, listed for hearing in this proceeding is whether or not the applicant was entitled to a copy of the deed

5 Notwithstanding the Deputy President's statements at the directions hearing, the applicant proceeded to file more material and photographs of general complaints about the management of the strata parcel by the respondent unrelated to or not obviously related to her claim to be entitled to a copy of the deed.

6 It appears from the transcript of 15 April 2015 that the Deputy President possibly had before him archived files from earlier proceedings commenced by the applicant against the respondent or the proprietor of Lot 97, or at least some information about those matters. It also appears that the Deputy President had before him a copy of the deed in question. The Deputy President refused the respondent's request to assess the relevance of the deed to any of the applicant's underlying complaints against the respondent or the lot proprietor of Lot 97 because neither of the underlying complaints were the subject of this proceeding and because the matter was listed for a directions hearing on that date not a hearing of the substantive matter.

7 What was referred to the Tribunal for hearing was limited to the s 90 ST Act application.

8 Did the respondent wrongfully fail to make the deed available to the applicant for her or her agent to inspect, copy or make an extract of the same in breach of s 43(1)(b)(ix) of the ST Act? The answer to this question is: No.

9 If the answer to the above question is 'No', can the Tribunal make an order pursuant to s 90 of the ST Act in any event? The answer to this question is: No.

10 Should the Tribunal exercise its discretion to compel the respondent to provide a copy of the deed to the applicant pursuant to s 83(1) and s 43(1a) of the ST Act in the circumstances of this proceeding? The answer to that question is: No.

11 Section 43(1)(b)(ix) of the ST Act compels a strata company to make available for inspection 'any other records or document in the custody or control of the strata company', relevantly, to a lot proprietor when that person makes a written request for access. Section 43(5) of the ST Act permits the person for whom the inspection is provided, or that person's agent, to either copy the document (but not take it away for copying) or make an extract of that document. Section 43(1a) of the ST Act confers a discretion on the strata company to provide a copy of such a document to a lot proprietor who makes a request. The strata company is not compelled by s 43(1a) of the ST Act to provide the lot proprietor with a copy of any document within s 43(1)(b)(ix) of the ST Act.

12 Section 90 of the ST Act confers power on the Tribunal to make an order that the strata company make the requested document available for inspection. Section 90 of the ST Act does not confer on the Tribunal any power to make an order for the respondent to produce a copy of any documents identified in s 43(1)(b) of the ST Act to the applicant. Any application of that kind could only be made pursuant to the general power to resolve disputes conferred by s 83(1) of the ST Act. The power conferred on the Tribunal, by s 90 of the ST Act is a discretionary power: see Maguire v Owners of Roslyn Strata Plan 35960 [2014] WASC 28 (Maguire) and it may only be exercised if the Tribunal concludes that the strata company to whom the request was made 'wrongfully' failed to make the requested document available (the threshold issue). As to the exercise of the discretions in s 90 of the ST Act (or s 83(1) of the ST Act), the Tribunal must guard against misuse, oppression and obsessiveness in such application (Maguire at [62]).

13 The applicant asserts that she is entitled to a copy of the deed in question pursuant to s 90 of the ST Act. The applicant did not provide to the Tribunal a copy of her original letter of request to the respondent for a copy of or access to the deed. At the final hearing, the Tribunal did not have the deed before it and the respondent did not produce a copy of the deed at the hearing. The applicant maintained that a copy of her initial request to the respondent had been filed in a related matter, which matter involved or was presided over by then Senior Member Raymond. The applicant asserted that Senior Member Raymond in that related matter, had informed her that whatever was filed on the file in that proceeding would always be available to the Tribunal in future proceedings. However, only the file in this proceeding was before the Tribunal member presiding at the final hearing; all other earlier related proceedings or proceedings involving the same or similar parties having been archived off the Tribunal premises. As no other files were directed by the Deputy President to be provided to the presiding member at the final hearing of this proceeding, the Tribunal member presiding in this proceeding could only conclude that the material filed in those other proceedings was not relevant or necessary for a decision in this proceeding.

14 However, and in any event, it was conceded by the respondent at the final hearing that the applicant had made a written request for at least access to the deed. It was also conceded by the applicant at the final hearing that the respondent had granted the applicant access to the deed after she made a written request. What is not clear to the Tribunal (because the presiding member did not have the original request by the applicant), is whether the applicant sought a copy of or access to the deed in that letter. However, the respondent did not take issue with this point or rely on any failure by the applicant to request a copy of the deed.

15 The applicant asserted that access to inspect the deed was not sufficient and that she maintained that she required a copy of the same. In summary, she asserted that the applicant could not take advantage of the grant of access to the deed by the respondent because:

1. It required her to travel approximately 4 kilometres away from her home; and
2. the applicant was 'legally blind'.

16 The respondent asserted that it had granted access to the applicant to inspect the deed but that it refused to supply a copy of the document to the applicant because:

1. The applicant had commenced a number of proceedings against the respondent and against the proprietor of Lot 97 and that the provision of a copy of the deed would further encourage the applicant to commence further proceedings against the respondent and the proprietor of Lot 97, which proceedings had no merit. The respondent gave, as an example, the proceedings that had been commenced in the past concerning the letterbox numbers.
2. The deed concerned, amongst other things, a grant of a licence to the respondent and to all other lot proprietors to use a swimming pool constructed entirely upon and belonging entirely to the proprietor of Lot 97 and the provision of bore water from a bore water pump situated entirely upon and owned entirely by the proprietor of Lot 97, for the benefit of all other lot proprietors of the strata parcel. The respondent asserted that the subject deed was approximately 13 pages long and was the latest in a series of deeds stretching back 10 or so years between the Council of Owners, the proprietor of Lot 97 and whoever was the manager of the caravan park operated on Lot 97. The respondent asserted that nothing in the deed touched or concerned the positioning of or the numbering of individual lot letterboxes.
3. The current occupier of Lot 97 and operator of the caravan park thereon, and a party to the deed, had informed the respondent that if a copy of the deed were to be provided to the applicant by the respondent then that party intended to exercise its rights under the deed to give 30 days' notice of its intention to terminate that deed and the licences that operate for the benefit of all lot proprietors. The apparent reason for such drastic action is the history of the prosecution of proceedings against, in effect, the operator of the caravan park, by the applicant.

17 There was nothing before the Tribunal concerning what the applicant meant when she asserted that she was 'legally blind' except her oral statement at the final hearing. Nor was there any evidence before the Tribunal that the applicant's eyesight was so poor that she was unable to read. The only evidence before the Tribunal at the final hearing concerning this issue was that the applicant had produced an application and other documents in her own handwriting and had communicated with the Tribunal by way of letter and email in typed form. Further, there was no evidence before the Tribunal that the applicant was not able to engage the assistance of any person as an agent to attend the place of access to the deed; to have access to the deed and take a photographic copy of the deed; read the deed and make notes of the contents of the same; or copy relevant extracts of the deed so as to be able to show or read them to the applicant (assuming the applicant did have difficulty with reading).

18 There was no evidence before the Tribunal that the applicant could not travel (except her statement at the final hearing) or arrange for an agent to travel to the place of access to the deed. The applicant had managed on a number of occasions to travel from her home in Dawesville to the Tribunal offices and hearing rooms in this proceeding and other proceedings, which is a distance far greater than 4 kilometres.

19 The evidence also established that the applicant had brought proceedings against the respondent and others concerning the numbering of letterboxes which also raised the issue of the provision of the deed to her in matter CC 1303 of 2013 (in which leave to withdraw was granted and the applicant's application was dismissed), in matter CC 63 of 2014 (in which leave to withdraw was granted and the applicant withdrew her application), and in matter CC 306 of 2014 (in which leave for the applicant to proceed with an application was refused). In each of these proceedings the respondent asserted that the numbering of the letterboxes and the details of the terms of the deed were the focus of the applicant's complaint. Whatever the nature of the earlier proceedings the Deputy President was satisfied that the application in this proceeding was not issue estopped or otherwise barred.

20 The Tribunal concluded on the uncontested evidence that the respondent had not 'wrongfully' failed to make the deed available for inspection by the applicant or an agent pursuant to s 43(1)(b)(ix) of the ST Act. On the contrary, the respondent had complied in full with its obligation to the applicant pursuant to s 43(1)(b)(ix) of the ST Act. As the respondent had complied with its obligation pursuant to s 43(1)(b)(ix) of the ST Act, there is no basis to conclude that the respondent had 'wrongfully' failed or failed at all in any respect of the obligation imposed by that provision, when considering whether the applicant had discharged the threshold issue necessary to obtain an order pursuant to s 90 of the ST Act. As such, the applicant failed in her application pursuant to s 90 of the ST Act and the Tribunal's discretion was not called upon to be exercised.

21 As to whether the respondent exercised its discretion under s 43(1a) of the ST Act correctly, and to the extent that such an issue may be determined by the Tribunal pursuant to s 83(1) of the ST Act (being the only provision under which the dispute could fall), the Tribunal concludes that the respondent was within its rights to refuse to make a hard copy of the deed available to the applicant. On the evidence before the Tribunal, there was no reason that justified the applicant in refusing to take advantage of the access to the deed that had been provided by the respondent pursuant to s 43(1)(b)(ix) of the ST Act. The Tribunal finds that the applicant could have attended the place of access to the deed and rejects the applicant's assertion that the she could not travel the 4 kilometres she said was required to inspect the deed. Given that the applicant could travel to the Tribunal from Dawesville on many occasions to attend proceedings between herself and the respondent and others, she demonstrated that her assertion was without foundation. The Tribunal also rejected the assertion that the applicant could not read as being a reason why she did not exercise her right of access to the deed. There is no evidence of an inability to read before the Tribunal and, in any event, the applicant could have engaged an agent to read the deed and inform her of the contents; photograph each page and have the contents read to her; or make and extract of the deed or the relevant provisions and have the extract read to her.

22 The Tribunal concludes that the applicant failed to explain why she or an agent had not inspected the deed when the respondent provided access therefor. Further, the applicant could not demonstrate how the terms of the deed were material to her proposed applications against the respondent and/or the proprietor or occupier of Lot 97.

23 The Tribunal also concluded on the evidence that was made available to it for the hearing, that any discretion in the respondent to produce a hard copy of the relevant document was exercised by the respondent correctly, given the evidence of the respondent that a party to the deed had expressed the intention to give 30 days' notice to terminate that deed and the licences to all lot proprietors in the strata parcel, granted by the deed as mentioned. The Tribunal accepted this evidence and accepted that the respondent, through the Council of Owners, believed that the deed would be and could be lawfully terminated by the operator of the caravan park who was party to that deed, if a copy were to be granted to the applicant. The Tribunal balanced this detriment to all of the proprietors of lots within the parcel against the detriment to the applicant in not obtaining a hard copy of the deed in circumstances in which the applicant could not demonstrate how material the deed was to her proposed actions.

24 The Tribunal concludes that the applicant has failed to establish that the respondent failed to make the deed available for her or her agent's inspection. The Tribunal therefore concludes that the applicant failed to establish that the respondent 'wrongfully' failed to discharge the duty imposed on it by s 43(1)(b)(ix) of the ST Act. As such, the applicant has failed to establish any entitlement to an order pursuant to s 90 of the ST Act.

25 As to an application in respect of s 43(1a) of the ST Act, the Tribunal concludes that the respondent's refusal is the correct and preferable decision, given the fact that the applicant could not demonstrate why the terms of the deed were material to her advancing any claims; the detriment that the respondent reasonably believed would arise to all lot proprietors if the respondent gave the applicant a hard copy of the deed; the applicant failed to attend to inspect the deed, and failed to have someone attend as an agent to read the deed, take a photographic copy of the same or an extract of the same, when it was made available for inspection by the respondent.

26 Accordingly, this proceeding was dismissed at the conclusion of the hearing.

I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________